Biady v Alidenes

[2019] NSWLEC 1467

Land and Environment Court

New South Wales

Medium Neutral Citation:	Biady v Alidenes [2019] NSWLEC 1467
Hearing dates:	25 September 2019
Date of orders:	25 September 2019
Decision date:	25 September 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage and injury – damage to stormwater and sewer pipes – whether the trees caused damage – whether suckers growing in the garden are causing damage
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Alfie Biady (First Applicant) Nadia Biady (Second Applicant) Michael James Alidenes (First Respondent) Maija Johanna Leonie Cordes (Second Respondent)
Representation:	Counsel C McConaghy (Respondents) M Lawandi (Agent) (Applicants)   Solicitors: Rennie Lawyers and Notaries (Respondents)
File Number(s):	2019/166506
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. Alfie and Nadia Biady (‘the applicants’) have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders relating to trees on neighbouring land belonging to Michael Alidenes and Johanna Cordes (‘the respondents’). Specifically they seek:

• Removal of a Robinia tree

• Pruning of a Jacaranda

• Compensation for the costs of a plumber to repair pipes

• Compensation for the cost of a tree removal application to council.

2. Both the Jacaranda and the Robinia are trees for the purposes of the Trees Act and are on land adjoining the applicants. The issues of contention, which I must determine today, are:

• Whether the applicants have made reasonable effort to reach agreement (s 10(1) of the Trees Act); and

• Whether each tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or is likely to cause injury (s 10(2) of the Trees Act).

3. If both of the above questions are answered in the affirmative, before making any orders, I must consider a range of matters at s 12.

Have the applicants made reasonable effort?

4. The applicants and respondents went to mediation in 2016 regarding the Robinia and reached some agreed actions.

5. Since then, relations have broken down further. The applicants requested further mediation this year. The respondents wanted to include other issues they say are related. The applicants applied to the Court in May of this year. The respondents argued that the applicants have never raised their issues regarding the Jacaranda. The Court understands the difficulties neighbours might have communicating all their concerns clearly once locked in a dispute. I am satisfied that the efforts made by the applicants are reasonable.

Has the Jacaranda caused damage?

6. In their application, the applicants say pipes on their property were damaged by the Jacaranda. However, at the hearing, they clarified that they believe the Robinia damaged the pipes. They argued that the Jacaranda overhangs their property. Its branches suppress and damage their lime tree. Flowers blow onto and stain their washing. The flowers are toxic and may poison their children. The respondents argued there is no evidence that the tree has caused any damage. I observed this six-year-old Jacaranda to be well clear of the applicants’ lime tree, although that might be a result of recent pruning. It overhangs the boundary only slightly. No photos of damage to clothing were provided. I am not aware of anyone being poisoned by Jacaranda flowers and the applicants provided no such evidence. I am not satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or is likely to cause injury. Therefore, this element of the application is refused.

Has the Robinia caused damage?

7. The applicants provided many photos showing Robinia suckers growing from the trees’ roots in their garden and under their dwelling. They extend a considerable distance from the tree and can be seen close to the repaired pipe.

8. The evidence regarding pipe damage is scant. There are no photos of the damage. The plumber’s receipt for repair works says roots were found in both a sewer pipe and a stormwater pipe. The plumber mentions both the Robinia and the Jacaranda, despite other neighbouring trees being closer. No root identification was undertaken. The Court cannot order $2,200 compensation on this limited evidence.

9. The applicants argued that they have shown through their photos that the Robinia’s roots grow close to the pipes. They argued that the respondents have not shown other trees have roots there. They submitted that the Court should be able to identify the small root in a photo as a Robinia root. They submitted that the growth of suckers beneath their dwelling, some near wiring, amounts to damage.

10. The respondents argued that the onus is on the applicants to prove causation, not on them to prove otherwise. They submitted that this has not been done.

11. I accept that the Robinia's roots grow close to the pipe that was repaired. However, there are other trees on other adjoining properties, closer to the pipe. These trees may well have roots in the same area, but as they do not sucker, they are not visible. I cannot be satisfied that any damage to the pipes was caused by the Robinia. The suckers beneath the dwelling are relatively small and have not damaged any property. Nor have the applicants shown that they are likely to. I appreciate that the applicants find them a nuisance, but as Preston CJ explained at [166] in Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152, actual damage is required to enliven the jurisdiction of the Trees Act. I am not satisfied that the tree has caused any damage, therefore this element of the application is also refused.

Orders

12. Based on the foregoing, the orders of the Court are:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 02 October 2019