Harvey v Harding - [2007] NSWLEC 489

Land and Environment Court

of New South Wales

CITATION: Harvey v Harding [2007] NSWLEC 489

PARTIES:
APPLICANT
Marcia Harvey
RESPONDENT
Muriel Harding

FILE NUMBER(S): 20469 of 2007

CORAM: Moore C - Roseth SC - Fakes AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Blocked sewer

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 19 July 2007

EX TEMPORE JUDGMENT DATE: 19 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
ROSETH SC
FAKES AC

19 July 2007

07/20469 Marcia Harvey v Muriel Harding

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 made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Ms Harvey of 59 Penshurst Street, Penshurst concerning blockages to her sewer which she says are occasioned by tree roots emanating from a property at 538 Forest Road, Penshurst owned by Ms Harding.

2 The application seeks an order for the removal of a Camphor Laurel tree (Cinnamomum camphora)and for compensation for work undertaken to her sewer line.

3 We have inspected such of the past works as are visible where the sewer has been excavated at the rear of Ms Harvey’s property and partially replaced between her property and the Sydney Water sewer main some 3 to 5 m away and located under Ms Harding's property. The visible works comprise the new PVC inspection and access points that have been constructed in the garden shed at the rear of her property.

4 This work was undertaken in late 2006 at a total cost (including restoration of her rear yard after excavation) of approximately $6,000. We have been provided with the detailed invoices and/or receipts involved for this work.

5 We have also inspected the trees that are growing in the vicinity of Ms Harvey’s sewer line from her house to the inspection points on her property and from the inspection points to the likely location, as best we are able to determine it after an inspection of the Sydney Water sewer diagram, of the Sydney Water sewer on Ms Harding’s property.

6 We are satisfied, after an inspection of the work undertaken by the plumber at the end of 2006 that:

First, it is probable the roots, in fact, came from a Jacaranda tree located on Ms Harding's property rather than from the Camphor Laurel; and
Second, it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harvey v Harding

Details

AGLC: Harvey v Harding [2007] NSWLEC 489
Case: [2007] NSWLEC 489
Decision Date: 19 July 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with the case of Harvey v Harding, where Marcia Harvey sought an order for the removal of a tree and compensation for sewer blockages caused by tree roots. The case involved a dispute between neighbours, Marcia Harvey and Muriel Harding, regarding the blockage of Harvey's sewer, which she attributed to tree roots from Harding's property. Harvey applied for the removal of a Camphor Laurel tree and compensation for the cost of repairing her sewer line. The court inspected the sewer line, the trees, and the surrounding area to assess the situation.

The court had to determine which trees were causing the blockage and whether the Camphor Laurel tree should be removed. Additionally, the court needed to decide on the appropriate method for preventing further root damage, the apportionment of costs between the parties, and the timeline for future works. After inspection, the court concluded that the roots were more likely from a Jacaranda tree and a Broad-leafed Privet, rather than the Camphor Laurel. The court found that it was necessary to establish a root-proof connection between Harvey's sewer inspection points and the Sydney Water sewer main, with possible access through Harding's property.

The court ordered that Harding should pay 60% of the past costs within 90 days, and 60% of the future costs once the works were completed. The future works should be carried out within six months, and Harding was to be notified of any access to her property. The court also allowed for the removal of the Jacaranda and Privet trees if necessary for occupational health and safety, with any extra cost incorporated into the total cost to be shared between the parties.

Orders