Donato v Drovandi

[2018] NSWLEC 1595

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Donato v Drovandi [2018] NSWLEC 1595
Hearing dates:	24 October 2018
Date of orders:	25 October 2018
Decision date:	25 October 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – terracotta sewer pipe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Frank Donato (First Applicant) Grace Donato (Second Applicant) Grazia Drovandi (Respondent)
Representation:	F & G Donato, litigants in person (Applicants)
File Number(s):	2018/195950
Publication restriction:	No

Judgment

Background

1. Frank and Grace Donato (‘the applicants’) own a residential property in Moorebank. They constructed the original dwelling almost 60 years ago and added a second dwelling in the rear part of their property about 20 years ago.

2. A fig tree grows in a neighbouring property. They have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for removal of the tree, which they say is causing damage to their property.

3. The hearing took place onsite, where I viewed the Donatos’ property and the neighbouring tree. Grazia Drovandi (‘the respondent’) did not appear at the hearing.

The applicants’ submissions

4. The Donatos submit that roots of the neighbouring tree blocked their sewer pipe. They say the tree’s branches are close to the roof and guttering of their second dwelling. The Donatos think roots will affect their dwelling and make their paving surface uneven.

Findings

5. This Hill’s Weeping Fig (Ficus microcarpa var. hillii) is one of several figs along Mrs Drovandi’s rear boundary, but is the closest to the Donatos’ property, approximately five metres from their common boundary.

6. There is no evidence demonstrating that roots found in the Donatos’ sewer pipes earlier this year were from the fig tree, but I accept this was likely. The fig trees on Mrs Drovandi’s property have vigorous root systems and there are no other established trees nearby. Nevertheless, the blocked sewer pipe is part of the older dwelling at the front of the applicants’ property and is likely to be terracotta. Given its age, it is most likely the terracotta pipe has moved and cracked over time, allowing fine roots to enter and then proliferate inside the pipe. To a significant extent, the age and condition of the pipe has contributed to the issue. The applicants seek no compensation. If the issue recurs they might get the pipe relined.

7. The tree’s branches are not touching the Donatos’ dwelling. Any paving disturbance is minor and would not warrant orders. The tree is unlikely to cause other damage or injury in the near future, a period I regard as 12 months (see Yang v Scerri [2007] NSWLEC 592). This is not to say the tree is unlikely to cause issues in the longer term – issues which Mrs Drovandi could avoid by pruning the tree – but I’ve found nothing that would satisfy the jurisdictional test at s 10(2) of the Trees Act.

Orders

8. As a result, the orders of the Court are:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Amendments

16 November 2018 - Insertion of "This decision was given as an extemporaneous decision. It has been revised and edited prior to publication."

19 November 2018 - Removal of "This decision was given as an extemporaneous decision. It has been revised and edited prior to publication." (Previously inserted in error)