Mayne v Trotter

[2009] NSWLEC 1036

Land and Environment Court

of New South Wales

CITATION:

Mayne v Trotter [2009] NSWLEC 1036

PARTIES:

APPLICANT
June Mayne

RESPONDENT
William & Valerie Trotter

FILE NUMBER(S):

21109 of 2008

CORAM:

Murrell C - Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the Magnolia tree, compensation for costs,

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

05/02/2009

EX TEMPORE JUDGMENT DATE:

5 February 2009

LEGAL REPRESENTATIVES:

APPLICANT
June Mayne, litigant in person

RESPONDENT
William & Valerie Trotter, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C
Fakes AC

5 February 2009

21109 of 2008 June Mayne v William & Valerie Trotter

JUDGMENT

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

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs June Mayne of 23 Nabiac Avenue Gymea concerning two trees growing at 25 Nabiac Avenue. This property is owned by Mr and Mrs Trotter.

2 The trees are a Magnolia sp. and a Corymbia maculata (Spotted Gum).

3 The applicant is seeking the removal of the Magnolia as she has evidence from Mr John Ford, a specialist in root identification, that roots found to be blocking her sewer are from a Magnolia. She is seeking the pruning of the Spotted Gum. Part of this tree overhangs her property, and, in particular, her clothesline. She is fearful that branches from this tree may fall and cause damage or injury. Mrs Mayne is also seeking compensation for the costs of the application.

4 The respondents do not want either tree to be removed.

5 The Magnolia is a healthy, multi-stemmed small tree/shrub growing in a small garden bed between the respondents’ driveway and the boundary fence with Mrs Mayne. It is towards the front of the property and provides a screen between the two properties. The tree is located within 2-3 metres of the riser section of the applicant’s sewer.

6 The applicant produced records of when plumbers have been called to unblock the sewer; this has occurred every 1 –2 years. The applicant has had the rising section of sewer pipe (ie, where it enters the house) left exposed so that she can clear the pipes herself. The excavation around this section of the pipe clearly showed many tree roots.

7 With respect to the Spotted Gum, the tree in question is approximately 10 m tall and a large limb overhangs the applicant’s clothesline. The tree is a healthy specimen with no obvious structural defects and a normal amount of dead wood in its canopy. The applicant showed us a branchlet [about 1 m in length with a diameter at the base of about 20 mm] that had fallen onto her clothesline in December 2008. No damage was caused to the clothesline. When questioned, the applicant stated that, to date, the tree had not caused any damage to property or injury to persons.

8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which we consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

9 The Court must also consider a number of matters listed in s12 of the Act. The relevant clauses in this case are:

(a) The trees are wholly located on the respondents’ property.
(e) The trees do make a contribution to the scenic value of the land on which they are situated;
(f) The Spotted Gum makes a contribution to the canopy cover in the immediate area and thus makes some contribution to public amenity.
(h)(i) Anything other than the tree that has contributed to the damage. In this matter, the applicant built the house in 1962 and about 2-3 years later the area was connected to the sewer. Thus the sewer pipes are now in excess of 40 years old and are made of terra-cotta. Mrs Trotter remarked that the houses in this area are built on fill and that they and their other neighbour also had problems with cracked sewer pipes as a result of settlement of the fill. As John Ford states in his report “if there are other species present with a propensity for getting into drains and sewers, merely eliminating the present culprit may not mean the problem will not recur. If the pipes have been damaged and are not repaired, taking one offender away may still leave the situation open for another.”
(ii) The applicant has taken steps to regularly have the sewer unblocked and no assistance appears to have been provided by the respondents.

10 After inspecting the trees, the Court finds that the Magnolia has caused the blockage of the sewer but may not have caused the cracking of the pipes. Whilst the Spotted Gum has not yet caused damage or injury, it has enough deadwood in the section that overhangs the applicant’s property to warrant some intervention.

11 Therefore the application is upheld in part and the orders of the Court are:

1. Deadwood down to 25 mm in diameter is to be removed from the sections of the Spotted Gum that overhang the applicant’s property. This work is to be carried out within 30 days of the date of these orders and subsequently every 3 years. This work is to be organised and paid for by the respondents. The work is to be carried out by an arborist with a minimum AQF level 2 qualification in Arboriculture and in accordance with AS4373:2007 and the WorkCover Code of Practice for the Amenity Tree Industry. The arborist must have the necessary insurances. The applicant is to be given at least 3 days notice of the works and she is to provide all necessary access for the works to be carried out in an efficient manner.
2. The Magnolia is to be retained. The section of the sewer pipe from the point of entry to the house and for a distance of 4 m below this point is to be replaced with PVC or lined. The applicant is to obtain 3 quotes for this work and the respondents are to agree to the most suitable quote. The costs of the replacement or lining of the pipe and all necessary associated costs (such as removing and replacing concrete) are to be shared equally between the applicant and the respondents. The respondents are to reimburse the applicant for their share of the costs within 21 days of the receipt of a tax invoice for the completed works.
3. The Court does not award costs of making an application under this Act.

___________________

J Murrell

Commissioner of the Court

___________________
J Fakes
Acting Commissioner of the Court