Ives v Carden

[2009] NSWLEC 1096

Land and Environment Court

of New South Wales

CITATION:

Ives v Carden [2009] NSWLEC 1096

PARTIES:

APPLICANT
Peter Ives

RESPONDENT
Carolyn Carden

FILE NUMBER(S):

21340 of 2008

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of trees, damage to property, compensation for damager

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

24/03/2009

EX TEMPORE JUDGMENT DATE:

24 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Peter Ives, litigant in person

RESPONDENT
Carolyn Carden, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

24 March 2009

21340 of 2008

Peter Ives v Carolyn Carden

JUDGMENT

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

1 ACTING COMMISSIONER: Mr Ives is the owner of 22 Holliday Avenue, Berowra Heights. He makes an application under the Trees (Disputes Between Neighbours) Act 2006 for removal of one large Peppercorn tree, a Fiddlewood tree, three small Pittosporum trees, a small Lilly Pilly tree, and a small Illawarra Flame tree growing on the adjoining property to the south of his house. He claims these trees have damaged or are likely to damage his sewer pipes and house. He also seeks pruning or removal of native tree growth west of his house to reduce bushfire risk. He seeks compensation for damage to his sewer, and other costs.

2 The trees are growing on 24 Holliday Avenue, Berowra Heights, which is owned by Ms Carden.

3 The following arboricultural reports were provided by the parties:

Arboricultural Assessing Report Statement of Evidence dated 2 March 2009 by Mr Mark Kokot for Mr Ives;
Arboricultural Assessment Statement of Evidence dated 13 February 2009 by Mr Danny Draper for Ms Carden;
Arboricultural/Horticultural Report for Ms Carden dated 31 January 2009 by Ms Lesley Saddington for Ms Carden.

4 Mr Draper attended the hearing and assisted the Court with his opinion on relevant matters.

Observations

5 At the hearing we observed that a large root of the Peppercorn tree, about 200 mm in diameter is growing under the fence, branching into many smaller roots. The earthenware sewer pipe at this point is slightly raised and one root of about 8 mm diameter is entering the pipe past the rubber sealing ring.

6 We also observed that one root of the Fiddlewood tree, about 80 mm in diameter is growing under the fence, branching into four or more roots of about 30 mm diameter. None of these roots appear to have caused damage to the sewer pipe.

7 Mr Ives also showed us where a branch line of the sewer had been cleared at the back of his house and where he had traced a root that entered the inspection opening past the rubber sealing ring, back to the peppercorn tree.

8 Mr Ives also showed us some native growth of eucalyptus and other trees near the common boundary to the west of his house. He explained that these were likely to cause damage to his property or injury to persons in the event of a bushfire, as shown by the Bushfire Attack Assessment Report dated 24 February 2009, included in his supplementary information filed on 3 March 2009.

Findings

9 I find on the basis of my own observations and the details on the invoice from Birchill Plumbing Pty Ltd dated 18 April 2008 that the Peppercorn tree has caused damage to Mr Ives’ sewer and is likely to cause further damage to the sewer in the near future. Therefore that tree meets the first and third tests in s10 (2)(a) of the Act. I also find that large roots of the tree would need to be removed to avoid damage to Mr Ives property in the near future, but that removal of those roots would kill or destabilise the tree. On that basis I will order removal of the Peppercorn tree.

10 I find that the Fiddlewood tree and the other five trees beside Mr Ives’ house are likely to cause damage by blocking the sewer in the near future, on the basis that the sewer pipe has already allowed entry of Peppercorn tree roots at some joints. Therefore these trees meet the third test in s10 (2)(a) of the Act. However, I find that due to the smaller size of these trees, their roots may be cut at the common boundary without killing them or making them unstable. On that basis I will order the installation of a root barrier as proposed by Ms Carden.

11 I have considered Mr Ives’ self completed Bushfire Attack Assessment Report from the NSW Rural Fire Service website which predicts an “Extreme” category of bushfire attack. I do not give that report the weight of a professional report, but together with my observation of a continuous canopy of trees from the adjacent bushland across Ms Carden’s property to his house, and the western aspect and steep slope down to the valley, I find that the native trees in the north-western corner of Ms Carden’s property present a bushfire hazard.

12 I do not find that a local bushfire is necessarily likely in the near future but since the last fire was in the 1990s, such an event could be considered likely in the next few years. The parties have proposed consent orders that include preparation of bushfire hazard reports with regard to those trees. I find that the burning mass of those trees in a bushfire is likely to cause damage to Mr Ives’ property or injury to a person. As likely injury to a person meets the test in s 10 (2)(b) of the Act, I am able to make orders regarding those trees, and will make the proposed consent order.

13 Regarding compensation, Mr Ives provided a list of costs at the hearing, totalling $2408.25. Of that cost, $714.50 was for plumbing repairs, excavation and paving replacement. As the plumbing repair was carried out in April 2008, before notice of the problem was given to Ms Carden in November 2008, and as there is no evidence of further damage since, I find that no compensation should be paid for the cost of plumbing and other excavation and paving work.

14 The remainder of Mr Ives’ costs are for his application to the court, his arborist’s report and his own costs. I cannot award compensation for these costs as Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the court and other expenses including personal expenses. Claims for these costs must be made by a Notice of Motion which is heard and determined by a Judge.

Orders

15 The application is upheld in part, and the Court makes the following Orders by consent that apply to 24 Holliday Avenue, Berowra Heights and 22 Holliday Avenue, Berowra Heights:

1. The peppercorn tree shall be removed and the stump treated to prevent regrowth;

2. Roots of the Peppercorn tree and Fiddlewood tree shall be removed from Mr Ives’ property within 0.6 m distance from the dividing fence to a depth of 0.4 m within 3 m of the location of the trunk of the Peppercorn tree and within 1 m of the location of the trunk of the Fiddlewood tree.

3. The works in 1 and 2 above shall be completed by 31 May 2009 by a suitably qualified and insured contractor at Ms Carden's cost. Mr Ives shall allow access to his property on reasonable notice and at reasonable times for the work to be carried out.

4. A continuous, deflecting root barrier shall be installed on Ms Carden’s side of the common boundary from the front alignment of Mr Ives’ house to 2 m beyond the western alignment of Mr Ives house, to a depth of 0.8 m or to bedrock, which ever is shallower. The base of the root barrier trench shall be treated with a suitable, long lasting, chemical, root growth inhibitor. The work shall be completed by 31 July 2009 by a suitably qualified contractor, at Ms Carden's cost.

5. Ms Carden and Mr Ives shall each obtain at their own cost, a bushfire hazard report with regard to trees in and adjacent their own backyard. Each report shall be prepared by a suitably qualified consultant. Each owner shall provide a copy of their report to the other by 31 July 2009.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at