Harrison v Pederson

[2007] NSWLEC 384

Land and Environment Court

of New South Wales

CITATION:

Harrison v Pederson [2007] NSWLEC 384

PARTIES:

APPLICANTS
John & Helen Harrison

RESPONDENT
Annette Pederson

INTERVENOR
Burwood Council

FILE NUMBER(S):

20303 of 2007

CORAM:

Moore C - Brown C - Thyer AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :-
Blocked sewer line
Removal of trees
Refusal of compensation

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

20 June

EX TEMPORE JUDGMENT DATE:

20 June 2007

LEGAL REPRESENTATIVES:

APPLICANTS
In person

RESPONDENT
No appearance

INTERVENOR
Mr J Lilley, tree management officer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
BROWN C
THYER AC

20 June 2007

07/20303 John & Helen Harrison v Annette Pederson

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site at

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application is made by Mr and Mrs Harrison of 4 Fountain Avenue, Croydon Park concerning a Camphor Laurel tree (Cinnamomum camphora) and a New Zealand cabbage palm located on the adjacent property to the south which is 6 Fountain Avenue.

2 Ms Pederson, who is the owner of the trees, has not attended the hearing (although she was present at the preliminary conference when the directions for this on-site hearing were given). She was provided, then, with a written copy of those directions.

3 We are satisfied that we should proceed to give a determination on the merits of the application (although we will have the Registrar write to Ms Pederson and provide her with a copy of these reasons and of the proposed orders and provide her with an opportunity to be heard further about those orders if she wishes to do so).

4 If she does wish to do so, then Mr and Mrs Harrison and Burwood Council (the Council) (which appeared as an intervenor) will be provided the opportunity to be heard further if they wish.

5 The matters that are claimed by Mr and Mrs Harrison effectively fall into three areas.

6 The first relates to the falling of leaves, fruit and small deadwood from the Camphor Laurel and the impacts that that causes on the Harrisons' gutters.

7 The second relates to the blocking of the sewer line which runs from their front bathroom, along the southern side of their house, to connect with the Sydney Water Sewer.

8 The third relates to a range of internal cracks that have appeared to ceilings, cornices and walls of their dwelling.

9 It is appropriate to deal with each of these claims in turn.

10 First, with respect to the falling of detritus from the tree, the Court has considered the maintenance responsibilities that fall on people who live in settled urban areas where there are trees which provide an environmental and aesthetic benefit.

11 This was considered in Barker v Kyriakides [2007] NSWLEC 292 where the Court published a Tree Dispute Principle in which it established the general proposition that, ordinarily, the Court will not intervene about such maintenance matters. People living in urban areas should, as a price of enjoying the benefits of having trees in such areas, be expected to undertake ordinary maintenance responsibilities for the falling of leaves, fruit, nuts and small amounts of deadwood from trees.

12 There is nothing in the present circumstances which would cause us to depart from that general proposition. Therefore, as this claim in the application is based on the dropping of leaves, fruit and small amounts of deadwood, this portion of the application is not granted.

13 With respect to the intrusion of tree roots into the sewer line, the sewer line to the front bathroom is one which would date from the period of construction of the Harrison’s dwelling from 50 or so years ago.

14 The sewer line to the rear bathroom is in an addition to the house that was added 20 or so years ago prior to Mr and Mrs Harrison’s purchasing the house in the 1980’s.

15 We have concluded, on the evidence that the Harrisons have given us, that it is likely that those roots have come from the Camphor Laurel. The Harrisons have informed us that they have been so advised by persons who have been contracted to clean the sewer line.

16 We are satisfied therefore that the first of the tests under s 10(2)(a) of the Act is met and we should now proceed to consider that what action (if any) the Court should order with respect to the trees and their intrusion into the sewer line.

17 We have considered whether or not it is appropriate to order the removal of the tree or, in the alterative, the digging and replacement of the sewer line. There is no evidence before us that would indicate that, if the problem with the tree roots were removed, then the sewer line would not still be adequate for the purposes for disposal of household effluent and would not suffer further root intrusion.

18 Ms Pederson filed with the Court and provided to Mrs and Mrs Harrison a Statutory Declaration indicating that she is seeking financing to permit her to remove the trees.

19 We are prepared to accept that that is also indicative of a preparedness to remove the trees. This assumption is reinforced by the information provided to us by Mr Lilley, Tree Management Officer of the Council, that Ms Pederson, herself, has applied in the past for Council’s consent to remove the trees (such consent having been granted on several occasions and most recently extended at her request).

20 We are satisfied, under those circumstances, that, in lieu of requiring that the sewer line on Mr and Mrs Harrison’s property be replaced, the appropriate course would be to order the removal of the trees.

21 Given the Statutory Declaration that has been provided by Ms Pederson, we are also satisfied that we should allow a reasonable period of time for her to undertake this work. We propose to order that the removal of the trees the undertaken within 90 days of the date of the orders of the Court.

22 We also consider that it would be prudent, in order to eliminate the possibility of further damage being occasioned, that, after the trees are removed, there should be the running of an electric eel up the Harrisons’ sewer line to ensure that any roots that might be present as at the date of the removal of the tree are also removed and that the sewer line is left in a functional and clear fashion at that time.

23 We are satisfied that such electric eel operation should be undertaken within 28 days of the date of the removal of the trees.

24 We are satisfied that the tree removal and electric eel operation should be undertaken at Ms Pederson’s expense.

25 With respect to the internal cracking within the Harrisons’ dwelling, a significant element of that cracking is located at a considerable distance from the trees.

26 There is no sign of cracking in the extension of the house which is closer to the trees and which was erected some 20 years ago (nor is there any obvious sign of cracking in the external wall of the house most proximate to the trees). Certainly, there is no visible cracking to the same extent as the cracking which occurs elsewhere in the house – including on the side of the house opposite that which is proximate to the trees.

27 Although Mr and Mrs Harrison had some anecdotal evidence from a structural engineer who inspected the premises some years ago, we are not able to be satisfied that the cracking was caused by the trees and, therefore, we are unable to be satisfied that the relevant test under s 10(2)(a) of the Act has been satisfied.

28 We are, therefore, not in position to consider what order, if any, should be made in that regard.

29 Therefore, the proposed orders of the Court will deal entirely with the removal of the trees and the precautionary running of the electric eel up the sewer line.

30 A copy of these reasons for the decision and the proposed orders will be provided to Ms Pederson with the opportunity for her to be heard on them is she so wishes.

Tim Moore Graham Brown

Commissioner of the Court Commissioner of the Court

Peter Thyer

Acting Commissioner of the Court