Harvey v Darley Trading Pty Limited

[2015] NSWLEC 1488

Land and Environment Court

New South Wales

Medium Neutral Citation:	Harvey v Darley Trading Pty Limited [2015] NSWLEC 1488
Hearing dates:	25 November 2015
Date of orders:	25 November 2015
Decision date:	25 November 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld; tree to be removed see [14].
Catchwords:	TREES [NEIGHBOURS] Damage to property; ongoing sewer blockage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Mr Richard Harvey (Applicant) Darley Trading Pty Limited (Respondent)
Representation:	Applicant: Mr R Harvey (Litigant in person) Respondent: Dr P Conway (Solicitor)   Solicitors: Respondent: Tribe, Conway and Company
File Number(s):	20687 of 2015

Judgment

1. COMMISSIONER: The applicant owns a property in Paddington. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Casuarina glauca (Swamp Oak) growing in the front yard of the adjoining property to the east. The application also seeks orders for compensation from the respondent for past plumbing costs, and if the tree is not removed, the cost of rectifying the sewer.

2. The orders are sought on the basis that the roots of the tree have caused, are causing, and will continue to cause, blockage of the applicant’s sewer and have started lifting and displacing pavers in a rear courtyard.

3. The respondent does not oppose the order to remove the tree but proposes that the claim for compensation and rectification be dismissed. The respondent supports the removal of the tree on the basis that roots from the tree have caused ongoing damage to his front gate and front fence, the branches interfere with overhead power lines, and that branches of a size that could cause injury have fallen from the tree.

4. The applicant does not oppose these alternative orders but if removal is ordered the applicant requires the respondent to pay for the clearing of any subsequent blockages that occur if there is any delay in removing the tree.

5. The tree is a large and mature specimen growing in the respondent’s front yard. To the east of the respondent’s property is Bethel Lane. The applicant’s property is to the west and the sewer runs close to the common boundary. The inspection pit is in the footpath close to the corner of the parties’ properties. From this point the sewer connects to the sewer main located in the street. During the hearing the applicant used a stick to demonstrate the depth of the riser down to the main – approximately 1.5m.

6. The applicant states that the sewer has been blocked on many occasions; not only from the inspection point back towards his property but also from the inspection point to the main. The tree is within 3-4 metres of the sewer. A photograph included in the application shows roots in excess of 100mm in diameter in the north-eastern corner of the respondent’s property within a metre or so of the pipe and inspection point.

7. The application claim form includes copies of plumbing invoices indicating that the sewer was cleared of roots on or around [depending on date of invoice] 21 May 2014, 7 November 2014, 28 January 2015, and 22 June 2015. During the hearing I was informed that the pipes were cleared again in October 2015. All invoices record the presence of tree roots. CCTV was used in January and June 2015; stills taken from the footage show the presence of tree roots in the sewer pipes.

8. In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states:

(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.

9. Injury is not pressed by the applicant although it is raised in a number of sworn affidavits from nearby residents.

10. On the evidence, I am satisfied to the level required by s 10(2) that the tree the subject of the application has caused and will continue to cause damage to the applicant’s property, in particular to the sewer and secondly to the paving. Therefore the Court’s jurisdiction to make orders is engaged.

11. Before doing so, I must consider any relevant discretionary matters in s 12 of the Act. Those applicable to this matter:

• The tree is protected by Woollahra Council’s Tree Preservation Order (TPO). In a submission from council’s Tree Management Officer and filed with the Court, the tree has been the subject of several previous TPO applications made by the respondent to remove the tree. Permission was sought to remove the tree on the basis of leaf drop and blocking of gutters of the respondent’s and other neighbouring properties, conflict with overhead power lines, dropping of large branches, and damage to the respondent’s gate and front fence. Council refused permission to remove but permitted pruning. The applicant applied to council to remove the tree on the basis that it was blocking the common sewer that serviced the applicant’s and two other properties. Council refused the applications essentially because council will not normally issue permits for removal of significant trees where secondary structures are impacted. In regards to the applicant’s request, refusal was on the basis that the tree is significant and all options for replacing the aging pipes had not been explored. The council is of the view that the tree has high landscape amenity value because of its position and high visibility in the precincts. Given the narrow streets, the council has few opportunities for planting street trees. The applicant’s evidence includes five affidavits from other neighbours who raise various grounds supporting the removal of the tree (s 12b)).

• The applicant asks that if the tree is not removed then an order be made for the installation of a root barrier. While neither party engaged an arborist to provide independent expert evidence, with the arboricultural expertise I bring to the Court I consider the installation of a root barrier, and the root pruning it necessitates, is impracticable given the constrained site and limited access between the parties’ properties. In addition, severing large woody roots, as evidenced by the size of the woody roots close to the common boundary would, in my opinion, compromise the health, and possibly the stability, of the tree (s12(b2 – impact of pruning). Pruning the above ground parts will have no impact on restricting root growth into the sewer.

• The applicant provides evidence that the tree is not listed as a significant tree in Woollahra Council’s Significant Tree Register nor is the tree included in Part C1 – Paddington Conservation Area list of Significant views and vistas in Part C Woollahra Development Control Plan 2015 (WDCP). The listed view in Gipps Street is from Bethel Lane to the south-east to Oxford Street. The tree is to the northwest of the Lane (s 12(b3)(c) – heritage/historical/other values).

• The council clearly values the tree for its contribution to public amenity. It is a large tree that can be seen from Oxford Street near the intersection with Glenmore Road (s 12(f)).

• It is likely that the age and nature of the sewer system has contributed to its propensity for being blocked by the tree’s roots. There is a narrow planter box adjacent to the common boundary in which Murrayas are growing. It is possible that these may also contribute to the blockage however, from the photographs included in the application claim form, and again based on the expertise I bring to the Court, the roots appear to be more typical of being from the Casuarina. The applicant has taken regular steps to clear and maintain the sewer, including from the inspection pit to the main. The applicant has obtained quotes for both the replacement of the sewer and the relining of the common sewer including to the main. Quotes for relining the sewer, including the section to the sewer main, from $20,000 - $37,000. The respondent has sought permission from council to remove the tree on several occasions (s12(h)).

• The applicant cites Part C1.5.10 Gardens and trees in WDCP – Paddington Conservation Area. In particular, he draws attention to objectives 03 and 05 which seek to ensure that front gardens are planted with species that relate to the building type and are appropriate to the size and aspect of the garden space and to ensure that trees do not have an adverse impact on the fabric of buildings and do not have an unreasonable impact on the amenity of occupiers or properties. While control C2 requires significant trees to be retained, the applicant submits that the tree is not a listed ‘significant tree’. Part C1.4.8 considers Private open space, swimming pools, lightwell courtyards and landscaping. Objective 07 seeks to ensure “that trees and other vegetation do not have an adverse impact on the fabric of buildings, and that works have no or minimal impact on the amenity of the occupiers of properties”. Control C19 requires that trees and shrubs at maturity should not have an adverse impact on the fabric of buildings, infrastructure, powerlines or other structures, and have only a minimal adverse impact on the amenity of the occupiers of properties. The applicant contends that these objectives and controls should also include neighbouring properties.

12. Having considered the evidence and the relevant matters in s 12 of the Act, I am satisfied that the tree should be removed. While I accept that it provides amenity to the streetscape, I find that the public amenity does not outweigh the problems arising from the frequent blocking of the applicant’s sewer. Apart from the inconvenience of the blockages, there may be potential public health issues if the connection to the main blocks and sewage overflows into the street (which has occurred in the past). While the aged pipes could be relined, this is a significant expense. I also note the relevant controls in council’s DCP in regards to avoiding adverse impacts on infrastructure.

13. The applicant seeks orders for the tree to be removed within 30 days. The respondent’s solicitor noted the possible difficulty of organising the work to be done at this time of the year. A period of 3 months was agreed subject to the respondent being responsible for all costs incurred by the applicant should the sewer be blocked before the tree is removed.

14. Therefore, as a consequence of the forgoing, the Orders of the Court are:

1. The application is upheld.

2. Within 90 days of the date of this judgement the respondent is to engage and pay for an arborist (minimum AQF level 3) with appropriate insurance cover to remove the tree to ground level and poison the stump to prevent suckering. This order does not prevent the respondent from having the stump ground out and remaining roots poisoned.

3. Should the arborist require it, the applicant is to provide reasonable access on reasonable notice for the work in (2) to be carried out safely and efficiently.

4. The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent.

5. Should the applicant’s sewer become blocked before the tree is removed, the applicant is to immediately notify the respondent’s managing agent and then organise and pay for a plumber. Within 21 days of the receipt of an invoice for any sewer clearing work, the respondent is to reimburse the applicant the full cost of that work.

_________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 27 November 2015