Cleminson v Nussbaum

[2015] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cleminson v Nussbaum & anor [2015] NSWLEC 1497
Hearing dates:	30 November 2015
Date of orders:	30 November 2015
Decision date:	30 November 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Possible future damage; insufficient evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Ms C Cleminson (Applicant) Ms R and Mr W Nussbaum (Respondents)
Representation:	Applicant: Ms Cleminson (Litigant in person) Respondents: Mr Nussbaum (Litigant in person)
File Number(s):	20686 of 2015

Judgment

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

1. COMMISSIONER: This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Rose Bay against the owners of trees growing on an adjoining property.

2. The applicant is seeking orders to remove all trees and shrubs growing adjacent to the side passageway of her property and to kill all roots remaining in the ground, or in the alternative, for the relining of sewer pipes as indicated in a quote from Omega plumbing.

3. The trees the subject of the application are a row of clumping bamboo and a frangipani. There are other trees and shrubs growing along the common boundary however these do not form part of the application.

4. In her application claim form the applicant states:

T1 [the bamboo] was planted less than a year ago, and we believe it is likely to cause damage to the D1 (earthenware sewerage pipes), as bamboo is an aggressive growing plant. It has penetrated the boundary fence and has appeared on our property. The passageway at [applicant’s property] has been laid with reinforced concrete and if the pipes collapse or are damaged in any way due to the bamboo, then this will be a costly exercise to repair.

5. According to the respondents, the clumping bamboo was planted in March 2013. The frangipani is well-established.

6. The only supporting evidence provided by the applicant where roots are mentioned is a quote dated 29 May 2015 from Omega Service Solutions. The quote considers two options.

To perform sectional relining of sewer pipe from stack to mains. 3 points where cracked clay pipe has occurred, tree roots are getting in. Being affected by neighbours tree roots.

To perform downstream relining from stack work to mains. To reinforce existing pipe work in ground being affected from neighbours tree roots.

7. During the hearing the applicant stated that in August/September 2014 the junction/pit connection to the sewer main at the rear of her property was replaced at great expense. At that time the full length of the sewer was cleared. She said…