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 is sufficiently improbable that the roots came from the large eucalypt growing on Ms Harvey’s property that we should ignore this tree.

7 We accept that the trees which are involved are the Jacaranda tree (Jacaranda mimosifolia) and (possibly) the Broad-leafed Privet (Ligustrum lucidum) growing on Ms Harding’s property immediately adjacent to the sewer line.

8 We are satisfied that the roots of the Camphor Laurel tree (which is the tree which Ms Harvey applies to be removed) are sufficiently improbable to be involved that we will not make any order for intervention with or removal of that Camphor Laurel tree – it being located some 20 m or so to the northwest of the closest point to Ms Harvey’s sewer line (being the junction of that house line and the Sydney Water sewer main).

9 We are satisfied that the desirable approach to prevent further root damage to the house sewer line is to require that a root proof connection be established between Ms Harvey’s sewer inspection points and the Sydney Water sewer main. We are further satisfied that the appropriate way to do that is to utilise access, if necessary, through Ms Harding's property (as has been agreed to by her) for either a Bobcat or a Dingo as the preferred method for excavation purposes.

10 We are satisfied that, because the pipes were terracotta pipes of considerable age and there must have been, of necessity, some defect in one or more joints permitting the roots to obtain initial access, there should be some apportionment between Ms Harvey and Ms Harding of the costs of both past and future works.

11 With respect to the past works, it was submitted, on behalf of Ms Harding, that the proportion which we had tentatively proposed for the parties to consider (involving a 60 % responsibility to Ms Harding and a 40% responsibility to Ms Harvey) should be disturbed on two bases.

12 The first basis related to the plumber running his electric eel back up the house line from the inspection point to ensure that it was clear – thus establishing that there were no obstructions in that part of the pipe. The plumber gave evidence that there was an entanglement of roots around the riser to the inspection point.

13 We are satisfied that it was an appropriate and prudent step for him to undertake as part of the works. We are therefore satisfied that it is appropriate that this be incorporated in the necessary costs of addressing the blockage of Ms Harvey’s sewer line.

14 The second basis proposed was that all of the works should have been undertaken at the one time and that, as a consequence, there will be an element of duplication of work.

15 It is not necessary, in our view, to explore that the issue extensively. There is, we are satisfied, an appropriate basis for requiring that the additional works be undertaken.

16 The works that were undertaken initially were undertaken in response to the blockage of a household sewer line and such a blockage requires, as a matter of social and health desirability, an immediate and appropriate intervention.

17 It would have been difficult, under those blockage circumstances, to have arranged for appropriate access and detailed construction to be undertaken from the damaged part of Ms Harvey’s connection through to the Sydney sewer at that the time.

18 We are therefore not satisfied that we have any valid basis to disturb the proposed apportionment on what is said to be duplication past works nor are we are minded to alter the apportionment that we have proposed (that is that Ms Harding be responsible for 60% of both the past and future rectification costs).

19 We have considered what would be the appropriate period of time within which Ms Harding should pay her portion of the past costs and any future costs which are to be incurred.

20 We are satisfied that we should order that Ms Harding is to pay Ms Harvey, within 90 days of the date of the orders of the Court, an amount equal to 60% of the total of the three invoices/receipts attached to Ms Harvey’s application. As Ms Harding has not seen a copy of the application – although we took a break to provide her with the opportunity to read a copy, the Court will provide a copy to her with the formal orders.

21 As to the future costs of the works to be undertaken, noting that Ms Harding has consented to access being available through her property and for the carrying out of the works on the portion of Ms Harvey’s sewer line which is on Ms Harding’s property, we propose:

• to require Ms Harvey to obtain three written quotations for the carrying out of the additional work;
• to require Ms Harvey to provide copies of these quotations to Ms Harding; and
• within 90 days of her being notified that the works have been completed by Ms Harvey providing Ms Harding with a copy of the invoice for those works, Ms Harding is to pay to Ms Harvey 60% of the amount of the lowest quotation as the portion of those costs Ms Harding is to meet.

22 We are also satisfied that it is appropriate to order that the future works be carried out within six months of the date of the orders of the Court.

23 Finally, with respect to the Jacaranda and Privet trees that are located in the vicinity of where excavation will be necessary for the carrying out of the future works, we propose to order that consent is given to the removal of those trees, if, in the opinion of the person carrying out the excavation in the vicinity of those trees, it is necessary to remove either or both of them to meet occupational health and safety requirements.

24 If such removal is necessary, any extra cost of that removal is to be incorporated in the total cost of the works to be apportioned between the parties on the basis of 60% to Ms Harding and 40% to Ms Harvey. This apportionment of any extra cost of tree removal is to be of the actual cost of that removal.

25 The orders will provide that Ms Harding is to be given reasonable notice of any access being required to her property; that such access is to be at a reasonable hour of the day; and that she is entitled to supervise any such access being undertaken.

Tim Moore

Commissioner of the Court

Dr John Roseth

Senior Commissioner

Acting Commissioner of the Court