Collins v Akers

[2009] NSWLEC 1010

Land and Environment Court

of New South Wales

CITATION:	Collins v Akers [2009] NSWLEC 1010
PARTIES:	Applicant: Ashley and Jill Collins Respondent: Graham Akers
FILE NUMBER(S):	21138 of 2008
CORAM:	Roseth SC - Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :- sewer damage; tree already cut down; compensation; notice of damage by tree
CASES CITED:	Osborne v Hook [2008] NSWLEC 1231
DATES OF HEARING:	13 January 2009
EX TEMPORE JUDGMENT DATE:	13 January 2009
LEGAL REPRESENTATIVES:	Applicant: litigant in person Respondent: litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC
Thyer AC

13 January 2009

21138 of 2008 Ashley and Jill Collins v Graham Akers

JUDGMENT

1 Commissioners: Mr and Mrs Collins, who live at 10 Catlett Avenue, North Rocks, apply to the Court for compensation for costs of repair to the sewer and landscaping in their rear yard. They contend that a large paper bark tree in the rear yard of Mr Akers, who lives at 8 Catlett Avenue, has caused the damage. The tree is situated about 0.3m from the common boundary and about 2m from the sewer.

2 The relevant provisions of s10(2) of the Trees (Disputes between Neighbours) Act 2006 (the Act) require that the Court be satisfied that one or more of four conditions are met before the Court has jurisdiction to consider the application.

3 The tests are:

· Has the tree caused damage to the applicant’s property?

· Is the tree now causing damage to the applicant’s property?

· Is the tree likely in the near future to cause damage to the applicant’s property?

· Is the tree likely to cause injury to any person?

4 While Mr Akers cut down the tree in January 2008, at the hearing we observed the stump of the tree situated on his property. We are satisfied that enough of the tree and roots remain to meet the requirements of s7 and s4(3) of the Act. We are also satisfied that it is highly likely, though not proven beyond doubt, that it was the paperbark on Mr Akers’ property, whose roots caused the damage to the sewer line. Therefore, the first of the above tests is satisfied.

5 In December 2007 the Collins’ became aware that their sewer could not cope when they were pumping water out of their swimming pool. They called a few plumbers on Friday 7 December. They found one plumber available to do the work. They had the work done on Monday 10 December. They sent a letter, dated 17 December 2007, to Mr Akers, informing him that the plumbing work had been done and requesting payment of $3,500 before 31 January 2008. Mr Akers did not pay and the Collins lodged the application on 13 November 2008.

6 Mr and Mrs Collins now claim a compensation of $4,500, which includes $1,000 for making good the landscaping.

Findings

7 In our opinion, it is not appropriate to order Mr Akers to pay compensation for the following reasons:

8 Mr and Mrs Collins did not notify Mr Akers of their claim, or that the tree was damaging the sewer line, until a week after the plumbing work was done. The usual practice of the Court is to award compensation only for that portion of the damage that occurs after the owner of the tree is notified that a problem exists (Osborne v Hook [2008] NSWLEC 1231). In this case the portion is zero.

9 Mr Akers was given no opportunity to comment on how the damage was to be repaired, nor the possibility to call a plumber of his own for advice. The usual practice of the Court is to award compensation only where the owner of the tree has the opportunity for input into the manner and cost of repair (Osborne).

10 Mr Akers acted with due haste to remove the tree, once he was aware of it causing a problem. He applied to the council to be allowed to remove the tree, paid for the removal, poisoned the stump and had the work completed before the end of January 2008.

11 We understand why the Collins’ felt under pressure to have the sewer line repaired, but they committed themselves to the cost when the opportunity was there for a cheaper temporary solution that would have allowed for consultation with Mr Akers before committing to the expense of $4,500.

Order
The application is dismissed.

___________________
Dr J Roseth
Senior Commissioner

___________________
P Thyer
Acting Commissioner