Fazakerley v Lekovic

[2021] NSWLEC 1502

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fazakerley v Lekovic [2021] NSWLEC 1502

Hearing dates:

01 June 2021

Date of orders:

01 September 2021

Decision date:

01 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The Pt 2 application is refused.

(2) The Pt 2A application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – neighbouring trees – whether the trees have caused damage – whether damaged property is the applicant’s – Pt 2A application concerning obstruction of sunlight – whether sunlight to a window is obstructed

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10 and 12, Pt 2A ss 14B and 14E

Cases Cited:

Cayley v Gervay [2021] NSWLEC 1254

Category:

Principal judgment

Parties:

Robert Fazakerley (First Applicant)
Megan Fazakerley (Second Applicant)
Milos Lekovic (First Respondent)
Brenda Lekovic (Second Respondent)

Representation:

R Fazakerley (Litigant in Person) (First Applicant)
M Fazakerley (Litigant in Person) (Second Applicant)
S Cominos (Counsel) (Respondents)

Solicitors
Solari & Stock (Respondents)

File Number(s):

2021/50223

Publication restriction:

No

Judgment

Background to the application

1. Robert Fazakerley and Megan Fazakerley (‘the applicants’), owners of their residential Port Hacking property, applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders relating to neighbouring trees. Their application did not specify the orders they sought, but they later clarified that they want the trees removed and their stumps poisoned. The trees grow on an adjoining property belonging to Milos Lekovic and Brenda Lekovic (‘the respondents’).

The hearing

2. The matter was heard onsite, allowing observations of the subject trees and both properties. The applicants were self-represented; Mr Cominos, of Counsel, represented the respondents. No expert evidence was adduced. The respondent filed subpoenaed documents from Sutherland Shire Council (‘Council’) and Sydney Water Corporation (‘Sydney Water’).

The trees

3. Both the Pt 2 application and the Pt 2A application concern a row of 13 lilly pillies (‘the trees’), up to 16 metres tall, growing on the respondent’s land close to and along the common boundary shared with the applicants.

The Pt 2 application

Reasons for the application

4. The Fazakerleys seek removal of the trees on the basis that, on multiple occasions, the trees’ roots have blocked a Sydney Water sewer pipe within an easement along the rear of their property and other neighbouring properties. This caused sewage to overflow onto their land, creating a health hazard. They also allege the tree’s shade during winter has damaged their back garden.

Framework for the Pt 2 application

5. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the trees’ owners (s 10(1)(a) of the Trees Act).

6. Then, at s 10(2) of the Trees Act, is the key jurisdictional threshold under Pt 2:

10 Matters of which Court must be satisfied before making an order

(1) …

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

7. Before making any orders as outlined at s 9, the Court must consider the matters at s 12 of the Trees Act.

The applicants made reasonable effort

8. The Fazakerleys raised their issues with the Lekovics before making their application. The respondents did not dispute this. The applicants clearly expect an outcome to which the respondents do not agree. I am satisfied that the applicants’ effort was reasonable.

Damage to the applicants’ property

9. An easement across the rear of the Fazakerleys’ garden, parallel with their common boundary near the trees, contains a sewer pipe. The Fazakerleys say that on multiple occasions sewage has overflowed onto their property when tree roots have blocked the sewer pipe.

10. The applicants submitted that there is a requirement for the easement to be kept clear at all times. Roots of the lilly pillies have grown into the easement; their suckers have grown in the applicants’ garden, including in the easement. The trees’ growth rate has increased in recent years, indicating that their roots are in the sewer pipe. The sewer pipe is on a rock shelf, an environment which encourages root growth into the pipe. After the pipe was last cleared, tops of the trees browned off, indicating that it was their roots within the pipe.

11. The applicants submitted that sewage overflows onto their land from an access point on the sewer pipe on another neighbouring property slightly upslope from their own. The sewage that seeps onto their land is unbearably smelly and a health hazard.

12. The applicants submitted that Sydney Water has cleared the pipe on multiple occasions. The pipe has not been repaired so the issue will keep recurring. Removing the trees and poisoning their stumps would prevent further root growth and the issue should not recur.

13. Mr Fazakerley was of the view that even if the pipe belonged to Sydney Water, it is in an easement on the applicants’ land. The issue affects their property.

14. Regarding the lack of documented evidence, Mr Fazakerley said he was a reputable builder, he built their dwelling, and nobody would know more about the applicants’ property than he does.

15. The respondents submitted that there is a lack of evidence showing that their trees have caused damage. To support this, they provided a bundle of documents including Sydney Water work order records. Those records show multiple callouts initiated from various addresses. Mr Cominos, Counsel for the respondents, submitted that work records show the pipe was cleared of roots on multiple occasions, but the blockage locations described in the works orders do not demonstrate that they were within the applicants’ property. Some work records indicate the pipe blockage occurred on other properties: for instance, the record of 16 October 2020 shows the pipe was cleared two properties downslope from the applicants’ property. A Sydney Water work record with the applicants’ address describes being unable to break a blockage 80 metres from the access point, so Mr Cominos argued it is unclear on which property the blockage occurred.

16. Mr Cominos opined that the applicants provided no evidence, preferring to rely on Mr Fazakerley’s experience as a builder. The respondent has gone to some trouble to collect the available evidence, which does not demonstrate that their trees have damaged the applicants’ property.

17. Mr Cominos argued that the sewer pipe is the property of Sydney Water; it is not the applicants’ property. The work records indicate it is a vitrified clay pipe. It is the responsibility of Sydney Water to maintain the pipe, not the respondents.

18. Mr Cominos referred the Court to Cayley v Gervay [2021] NSWLEC 1254, where at [39]–[45] Douglas AC discussed and made findings regarding a sewer pipe obstruction. The common ground here is that the onus is on the applicants to demonstrate a causal nexus between the trees and damage to a sewer pipe, but they have failed to do so.

Pt 2 findings

19. I accept that the sewer pipe has been blocked on multiple occasions, causing sewage to seep onto the applicants’ property and thereby creating a health hazard. However, the Court cannot make orders in the Pt 2 application for the following reasons.

20. The pipe is the property of Sydney Water. It is not, as required at s 10(2)(a), the applicants’ property.

21. Even if the section of pipe within the applicants’ land was their property, I cannot be satisfied that any obstruction occurred to that section of pipe, rather than to a section of sewer pipe located on other land such as their neighbouring properties.

22. If evidence demonstrated that the pipe on the applicants’ land was damaged by tree roots, the Court could only make orders against the tree or trees causing that damage. It would not be within the Court’s jurisdiction to make an order against all trees in the vicinity, rather only those that are shown to be causing, or likely to cause, damage.

23. If the row of lilly pillies were removed, roots of other trees and vegetation would still be able to grow into the sewer pipe. The exact sites of recent blockages are unclear. If roots of trees on neighbouring properties grow into the sewer pipe, the applicants’ issue remains unresolved.

24. The health risk to the applicants is created by leaking sewage, not by the respondents’ trees. The responsibility for addressing the issue appears to lie with Sydney Water rather than the respondents.

25. I understand that the Fazakerleys have a problem at their property, but I can see no means within the Trees Act for the Court to provide them with any resolution.

26. The Fazakerleys pointed out some minor lifting of the fence along the common boundary shared with the Lekovics. They submitted this was caused by tree roots. If this is so, it is of such a minor nature that I would not regard it as damage and would not be minded to make any orders on this basis.

27. The Fazakerleys also claimed that their garden has been damaged by the trees’ shade during winter: plant growth is suppressed and the garden is too cold to use during winter. These factors might be inconvenient to the applicants, but they are not “damage to the applicants’ property” as stated at s 10(2)(a) of the Trees Act.

The Pt 2A application

Reasons for the application

28. The Fazakerleys seek removal of the trees on the grounds that they severely obstruct sunlight to their property.

Framework for the Pt 2A application

29. The Court may only make orders under Pt 2A of the Trees Act, where obstruction of sunlight is claimed, if the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicants’ land (s 14E(2)(a)(i) of the Trees Act).

30. As with Pt 2, the Court must also be satisfied that the applicants have made reasonable effort to reach agreement with the respondents (s 14E(1)(a)). I have already found above that this jurisdictional test is satisfied in these proceedings.

Sunlight obstruction

31. The Fazakerleys’ application referred to sunlight obstruction to their back yard. In their Pt 2A application claim details, at the question asking for details on which windows were obstructed and when they were obstructed, the Fazakerleys crossed out ‘windows’ and wrote in ‘backyard’. They found their shaded yard became too cold to enjoy during winter, even when the sun shone. The sunlight obstruction was caused by the neighbouring lilly pillies.

32. It is clear from the wording at s 14E(2)(a)(i) that orders can only be made under Pt 2A of the Trees Act where trees severely obstruct sunlight to a window of the applicants’ dwelling. Therefore, orders cannot be made.

33. The Fazakerleys submitted that in the time that elapsed between filing their application and the onsite hearing, the trees grew significantly so that at the time of the hearing their shadows extended to windows at the rear of the dwelling. This may be so, but the respondents have had no opportunity to prepare a response to this claim, and the Court has no evidence to assist its decision on that matter. It follows that the Pt 2A application must be refused.

Orders

34. As a result of the foregoing, the Court orders:

1. The Pt 2 application is refused.

2. The Pt 2A application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 September 2021