Ballard v Pedruco

[2010] NSWLEC 1192

Land and Environment Court

of New South Wales

CITATION:

Ballard v Pedruco [2010] NSWLEC 1192

PARTIES:

APPLICANT
Mrs E Ballard

RESPONDENT
Mr V Pedruco

FILE NUMBER(S):

20259 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Tree removal ordered

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

28 June 2010

 
DATE OF JUDGMENT: 

14 July 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mrs E Ballard [litigant in person]

RESPONDENT
Mr V Pedruco [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

14 July 2010

20259 of 2010 Ballard v Pedruco

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Milner Avenue Hornsby against the owner of a Ficus elastica (Rubber Tree) growing in an adjoining property.

2 The applicant is seeking the removal of the tree as she contends that the tree has caused damage to her property and could continue to do so.

3 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that a tree subject to the application has caused, is causing or could, in the near future, cause damage to the applicant’s property or could cause injury to any person.

4 In February 2010, the applicant’s water pipes were ruptured. The location of the break required the excavation of a strip of concrete to access the pipes. The excavation revealed that a large root from the Rubber Tree had fractured the pipe. Photographs included in the application clearly show the damaged pipe and the roots. One of the roots appears to have lifted and fractured the pipe.

5 The respondent was informed of this damage when the applicant became aware of the problem. However, the respondent took no action at the time.

6 The water and electrical services to the applicant’s house are located on the southern boundary of her property. The applicant is concerned that future damage will be caused to both or either of these services.

7 The roots of the tree extend beneath the applicant’s house and are clearly visible. The applicant is concerned about future structural damage to the house and to the sewer pipes located on the lower southern boundary of her property.

8 The tree is a healthy mature specimen. It is growing in a paved driveway on the respondent’s property and its root zone on that property is almost entirely covered by pavement and built structures. It is some 5-6 m from the applicant’s water pipes.

9 The applicant’s property is constructed on a sandstone escarpment. The western or upper portion of the applicant’s property consists of exposed and substantial sandstone outcrops. Some 2 m or so below a large sandstone shelf, the land slopes down and over sandstone outcrops to the east.

10 The applicant stated that there are many smaller sandstone floaters with pockets of soil between them. This is consistent with the observed landscape.

11 The evidence is clear that the tree has caused damage to the applicant’s property. Given the species of the tree, the geology of the site and the location of the services, future damage is expected to occur unless preventative action is taken.

12 Therefore, as two of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order.

13 The order sought by the applicant is removal of the tree. The respondent does not oppose this. Section 9 of the Act enables a degree of discretion in what the Court can order to remedy or prevent damage. There is no obligation to say simply yes or no to the orders sought, even if they are agreed.

14 I have considered the options for managing the tree’s roots on this site. In other circumstances, the installation of a root barrier would be a suitable alternative to removal as the tree and its benefits are retained but future damage to pipes prevented.

15 However, given the geology and the landform of the site, the installation of such a barrier would be practically difficult and incur significant cost. Therefore, in the circumstances of this matter, I consider that removal of the tree is the order that should be made.

16 Therefore, for the reasons given above, the Orders of the Court are:

1. The application to remove the tree is upheld.
2. The respondent is to engage and pay for an AQF level 3 arborist to remove the tree to ground level and to poison the stump.
3. The work is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry .
4. The work is to be completed within 90 days of the date of these orders.

_________________________________

Judy Fakes
Commissioner of the Court