Ding v Phillips - [2008] NSWLEC 1268

Land and Environment Court

of New South Wales

CITATION: Ding & anor v Phillips [2008] NSWLEC 1268

PARTIES:
APPLICANTS
Steven Ding & 242 Capital Pty Limited
RESPONDENT
Linda Phillips

FILE NUMBER(S): 20217 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: Compensation - Trees (Neighbours) :-
Failure to consider other vegetation
Absence of notice to tree owner

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Buckingham v Ryder [2007] NSWLEC 458
Briginshaw v Briginshaw (1938) 60 CLR 336
Robson v Leischke [2008] NSWLEC 152

DATES OF HEARING: 3 July 2008

EX TEMPORE JUDGMENT DATE: 3 July 2008

LEGAL REPRESENTATIVES:
APPLICANT
First applicant in person
RESPONDENT
Mr M Knight, solicitor
McCabe Terrill Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

3 July 2008

08/20217 Steven Ding & 242 Capital Pty Limited v Linda Phillips

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

1 COMMISSIONERS: We have watched three sets of DVD footage from the camera inspection of the sewer pipe in the applicants’ property. The camera, we were informed during a conversation by mobile telephone with the plumber who operated it, was run from the inspection entry point closest to the Sydney Water sewer main at the rear of the property through to the point where, adjacent to a bathroom, the sewer plumbing connects to the house. The camera footage which we have observed is, on our experience, exceptionally clear and well defined. There is no doubt that the data logger, from our measurements using a tape measure brought by the Court, accurately reflects the length of the sewer pipe traversed (being some 20.7 m from the inspection point to the point of the gully trap adjacent to the bathroom).

2 The application seeks an order for compensation for and rectification to damage to the sewer pipe and an element of pathway in the vicinity of the house. The application is based on a coral tree which was growing on the adjacent property to the east.

3 We carefully examine the line of the sewer and, using the tape measure, have measured the various points along the line of the pipe where the data logger in the camera discloses that there are tree roots at either junctions in and/or breakages to the sewer pipe.

4 The first of those is 5.2 m from the inspection point at the rear of the property where the video discloses a break in the pipe and intruding tree roots.

5 We interpolate that we accept the evidence given by Mr Ding that the state of root intrusion into the pipe is less than that which was originally observed in late 2007 (as a consequence of the pipe having been cleaned by electric eel during earlier plumbing activity prior to the camera inspection).

6 However, the matters which we are considering at this time do not relate to the extent of root intrusion into the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ding v Phillips

Details

AGLC: Ding v Phillips [2008] NSWLEC 1268
Case: [2008] NSWLEC 1268
Decision Date: 3 July 2008

CaseChat Overview and Summary

The case of Ding v Phillips involved the applicants, Steven Ding and 242 Capital Pty Limited, seeking compensation for damage caused by tree roots to their sewer pipe and pathway, allegedly by the respondent, Linda Phillips, who owned a neighbouring property. The dispute was heard in the Land and Environment Court of New South Wales. The primary legal issues before the court were whether the tree roots intruding into the applicants' sewer pipe came from the respondent's coral tree and if the damage to the pathway was caused by the same tree. The applicants also needed to demonstrate that the respondent was duly notified of the issue and that the damage had been ongoing.

The court examined the evidence presented, including video footage of the sewer pipe and measurements of the locations of root intrusions. The court found that the applicants failed to establish that the roots came from the respondent's coral tree, as there were other potential vegetation sources at each point of root intrusion. Additionally, the applicants did not provide evidence to exclude these other sources, leaving uncertainty about the origin of the roots. The court further noted that the damage to the pathway could not be attributed to the coral tree alone, as there were other plants in the vicinity that could have caused the lifting of the path. The court also considered the respondent's lack of awareness and notification of the issue until late 2007, which influenced the court's discretion not to hold her liable for past damages.

Based on these findings, the court dismissed the application. The court ruled that the applicants did not meet their burden of proof to demonstrate the origin of the root intrusions and that the respondent was not liable for the damages claimed. The court did not make any orders regarding compensation or rectification of the alleged damages.

Orders