Blatchford v Clubley

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blatchford & anor v Clubley & anor [2013] NSWLEC 1228

Hearing dates:

15 November 2013

Decision date:

15 November 2013

Jurisdiction:

Class 2

Before:

Moore SC
Galwey AC

Decision:

See para (26)

Catchwords:

Roots in sewer; damage to property; risk of injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

J Blatchford and L Bianchi (Applicants)

G Clubley and S Ieraci (Respondents)

Representation:

Applicants in person

Mr D Loether, solicitor (Respondents)
Solicitors
N/A (Applicants)

Bartier Perry (Respondents)

File Number(s):

20589 of 2013

Publication restriction:

Nil

EXTEMPORE Judgment

1. COMMISSIONERS: Three Leopard trees stand in the front setback of a house in Birchgrove. The owners of the neighbouring property to the north have made an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking an order for removal of the tree (which is in fact three separate trees, but for the purposes of these proceedings have been treated as a single tree) and for an order for the owners of the tree to meet the cost of replacement of their household sewer pipe.

1. A number of other matters raised in the application concerning costs are not within the jurisdiction of Commissioners of the Court and are therefore matters with which we do not propose to deal.

1. The application is based on what are said to be a number of facts that satisfy the jurisdictional tests in s 10(2) of the Act. Those jurisdictional tests require us to be satisfied that the tree has caused, is causing, or is likely in the near future, to cause damage to the applicants' property, or that the tree is a likely risk of injury to a person. The question of risk of injury is not confined to risk of injury to persons on the applicants' property.

1. There are a number of factual matters that are relied upon by the applicants to satisfy these jurisdictional tests.

1. The first is that there were tree roots in their sewer pipe, demonstrated by a number of photographs that have been tendered in evidence.

1. Second, that as a consequence of the roots in the sewer pipe, there has been, on at least two occasions in the current year, blockages of the sewer that have required the intervention of a plumber to clear that, with that blockage constituting either damage to the pipe, or a risk of injury to a person. They rely on the demonstrated existence of roots shown to us in an excavation in the side passage to their house, immediately adjacent to the respondents' house, of the existence of roots in a trench which we were informed had been dug by the respondents to the proceedings.

1. Further, they rely on cracks in concrete, being cracks in either a riser in the path between the two…