Fenwick v Hueffel

[2009] NSWLEC 1250

Land and Environment Court

of New South Wales

CITATION:

Fenwick v Hueffel [2009] NSWLEC 1250

PARTIES:

APPLICANT
Fenwick, Carolyn Mary

RESPONDENT
Hueffel, Heinrich

FILE NUMBER(S):

20245 of 2009

CORAM:

Fakes AC

KEY ISSUES:

COMPENSATION - TREES (NEIGHBOURS) :- removal of trees; damage to property.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

16 July 2009

EX TEMPORE JUDGMENT DATE:

16 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms C Fenwick (Litigant in Person)

RESPONDENT
Mr H Hueffel (Litigant in Person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

16 July 2009

20245 of 2009 Carolyn Fenwick v Heinrick Hueffel

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Ms Carolyn Fenwick of 9 Lockhart Court Harrington Park against the owner of 7 trees growing on 9 Lockhart Court. That property is owned by Mr Heinrick Hueffel. Also present at the onsite hearing were Mr John Soldo, Vegetation Management Officer from Camden Council and Mr Warwick Varley, Consulting Arborist from Allied Tree Consultancy who was engaged by the applicant.

2 The applicant is seeking the removal of 7 trees growing along the western boundary of the respondent’s property as she contends that the roots of these trees have blocked her sewer on several occasions. She is also concerned about the potential risk of damage by roots to the footings of her house and by leaves to her gutters and down pipes.

3 Ms Fenwick is also seeking compensation for an amount of $707 for the removal of roots from the sewer pipes in January 2009, $150 for an un-receipted plumbing cost, $453.20 for an arborist’s report, $189.00 for the application filing fee and the cost of replacing approximately 12 m of sewer pipe. The quotes for the replacement of the pipe range from $5346 to $1980.

4 The trees were inspected from both properties. They are a row of 6 Cupressus glabra Limelight and one x Cupressocyparis leylandii (Leyland Cypress) planted along the western side boundary of the respondent’s property. The Leyland Cypress is the most southern of the trees. The respondent planted these trees about 12-15 years ago when he moved into the street. They are within 300 mm of the timber dividing fence. They are mostly in average condition with the most northerly of the trees being in poor condition. The extension growth noted at the on-site hearing was consistent with the mature growth rate of these species.

5 The trees are approximately 1-1.5 m from the eastern wall of the applicant’s house. The applicant’s sewer is located on the eastern side of the property between the house and the dividing fence and is thus less than 1 m from the trees. A pit at the south-eastern corner of the house dug for the last clearing of the sewer on 5th July this year showed numerous fine roots of < 10 mm in diameter. The features of the roots were consistent with those of Cupressus spp. Some of the roots appeared to be growing against or beneath the exposed footings of the house.

6 The sewer pipes are PVC and the respondent questioned the ability of roots to penetrate pipes of this material. He considered that the pipes must have been damaged to allow the entry of roots but did not dispute that the fact that the roots had caused the blockages and that his trees were the obvious source of the roots.

7 The applicant pointed out a vertical crack in the brickwork at a return point on her eastern wall. The applicant had engaged an engineer from CJ Mackenzie Engineering to report on the cracked bricks. The report, such as it was, advised “probable root activity from adjacent trees being a highly contributing factor, sufficient to recommend removal of trees’. This being the entirety of the report with no method, no evidence and no discussion adds no value to the matter and is to be disregarded.

8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that a tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. As the trees in this matter form a unified row, they will be considered as one rather than individually.

9 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are:

(a) The trees are wholly located on the respondent’s property.
(d) The respondent stated that the trees are used by birds and thus they make some contribution to local biodiversity.
(e) The trees contribute to the scenic value of the land on which they are located as they appear to have been planted to provide a visual screen between the two properties.
(f) The trees are visible from the street and make a small contribution to public amenity.
(h)(i) There are no trees on the applicant’s property that are likely to have caused blockages to the sewer.
(h)(ii) The applicant has had the sewer cleared on several occasions and has sought the advise of specialists. She has also pruned some overhanging branches.
(j) Mr Varley stated that the soils in the area are reactive clays. Another relevant matter is that PVC pipes are normally resistant to penetration by roots.

10 Returning to section 10(2) of the Act and this application. In this matter, it is clear that the roots of the respondent’s trees have caused blockage of the applicant’s sewer on several occasions and are likely to in the near future as the two most recent clearings took place after an interval of only 7 months. Therefore two of the tests under this section of the Act are satisfied and the Court may make an order. There is no evidence that the crack in the brick work is due to roots. There is root activity adjacent to the footings of the applicant’s house.

11 Regarding the applicant’s concerns about leaf litter, the Land and Environment Court has published several Tree Disputes Principles. The relevant one in this matter is published in Barker v Kyriakides [2007] NSWLEC 292. The essence of this principle is that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

12 After viewing the evidence, the Orders of the Court are:

1. The application to remove the trees is refused.

2. However, due to the ongoing blockages to the sewer that have been caused by the roots of the respondent’s trees, the 12 m of sewer pipe on the eastern side of the applicant’s property is to be replaced with a new PVC pipe.
3. At the time of the installation of the new pipe and prior to the backfilling of the trench, a root barrier such as a strong plastic membrane is to be installed on the eastern side of the trench from the bottom of the trench to a point level with the top of the brick paving.
4. The applicant is to obtain 3 quotes for these works and to take the cheapest quote. The respondent is to pay for 80% of the cost of these works. The component of the costs relating to the installation of the pipes to be paid for by the respondent is to be no greater than $1584 that being 80% of the cheapest quote to date. Extra payment will be required for the installation of the root barrier.
5. The works are to be completed within 90 days of the date of these orders and the respondent is to pay the applicant the specified amount within 21 days of the receipt of a tax invoice for the completed works.
6. The respondent is to pay the applicant 50% of the cost of clearing the sewer in January this year; that being an amount of $353.50, within 30 days of the date of these orders.
7. The application for compensation for costs associated with the application and the collection of evidence is refused as is the amount of $150 for unspecified and un-receipted plumbing costs.

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