O'Connell v Gallagher

[2007] NSWLEC 718

Land and Environment Court

of New South Wales

CITATION:	O’Connell v Gallagher [2007] NSWLEC 718
PARTIES:	APPLICANTS Gerard and Patricia O’Connell RESPONDENTS Kevin and Pamela Gallagher
FILE NUMBER(S):	20787 of 2007
CORAM:	Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	19 October 2007
EX TEMPORE JUDGMENT DATE:	19 October 2007
LEGAL REPRESENTATIVES:	APPLICANTS Mr David Morgan Jones, solicitor RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

FAKES AC

19 October 2007

20787 of 2007 Gerard and Patricia O’Connell v Kevin and Pamela Gallagher

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. ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a Lilly Pilly (Acmena smithii) (the tree) located on a property at 121 Lambeth Street, Picnic Point.

2. Mr Kevin and Mrs Pamela Gallagher own the property.

3. Mrs Patricia and Mr Gerard O’Connell, of 123 Lambeth Street, Picnic Point, have made the application. Mr David Morgan Jones, solicitor, appeared for the applicants.

4. The application seeks orders from the Court that the tree be removed as it is the applicants’ contention that the berry drop is a slip hazard and poses a risk to human life. They also contend that the roots of the tree have blocked the rear toilet and are causing damage to a low brick wall that supports a hot water pipe.

5. The applicants are also claiming compensation of a total of $653.00 consisting of $308.00 for repairs to the sewer and unblocking of the toilet, $150.00 which is a quote for repairs to the wall, and a sum of $195.00 for a monthly chemical treatment to keep roots out of the sewer.

6. The owner of the tree, Mr Gallagher, does not want the tree removed as he values it as a screen and it has some sentimental value as it was a gift from a member of his family. He also disputes the assertion that the roots removed by the plumber from the sewer were from the tree.

7. Section 10(2) of the Act states that 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 any person.

8. Section 12 of the Act outlines the range of matters that must be considered by the Court when assessing an application. The matters relevant to this hearing include the location of the tree on the land in relation to the boundary, whether the tree has any historical, cultural, social or scientific value, if it makes any contribution to the local ecosystem and biodiversity, if anything other than the tree in question that may have contributed to the damage and the steps taken by both the applicant and the tree owner to prevent damage or injury.

9. An inspection of the tree from the owner’s property showed it to be located wholly on the respondent’s property. It is planted approximately 1.5 m from the boundary fence. It is approximately 4 m high and about 18 years old. Whilst this tree has no broader cultural or social value, it is none-the-less valued by the owner as it was a gift from a family member who lives overseas and was visiting at the time. The tree also affords some privacy and screening. Being a Lilly Pilly, the tree does make a contribution to local biodiversity.

10. An inspection from the applicants’ property showed that the tree had been pruned away from the boundary and was not overhanging the boundary fence. There was cracking and lifting of a low brick wall and stretching of the hot water pipe in the vicinity of the tree. The sewer diagram for the applicants’ property was viewed and the sewer inspection points were located. It was found that the sewer pipes were located within the rear garden of the applicants’ property and the damaged section was not in the immediate vicinity of the Lilly Pilly but was closer to trees on the applicants’ property, specifically a citrus tree and a Cypress. The pipes are the original terracotta pipes and are at least 50 years old. No roots removed from the sewer had been retained so a possible identification of their source could not be undertaken.

11. In the matter of the compensation for the repairs to the sewer and the ongoing chemical treatment, the Court finds that there is insufficient evidence to conclude, on the balance of probabilities, that the damage has been caused by the Lilly Pilly. This conclusion is based on the location of the pipes closer to trees on the applicants’ property and the absence of any roots for inspection. It is also noted that, as the pipes are the original terracotta, normal wear and tear is likely to have allowed ingress of roots. Thus the claim for compensation for $308.00 for repairs and $195.00 for chemical treatment is denied.

12. In relation to the fruit drop, it is noted that the owner of the tree, Mr Gallagher, has substantially pruned the tree away from the boundary so that no foliage now overhangs the applicants’ property. The Court also notes that Mr Gallagher has agreed to keep the tree pruned to limit any fruit drop onto Mr and Mrs O’Connell’s property.

13. While I understand the potential consequences of fruit fall for Mr O’Connell, given his state of health, I am also satisfied that Mr Gallagher has taken measures to abate the falling of fruit onto the O’Connell’s property, and will continue to do so.

14. As a consequence, for this reason, I am satisfied that the tree need not be removed.

15. In the matter of the damage to the low wall supporting the water pipe, it appears that this is likely to be caused by a root from the tree. This is placing strain on the hot water pipe. This satisfies one of the tests in section 10(2)(a) of the Act. The applicants stated that this has been happening for some years.

16. I am satisfied, from both the cause and nature of the damage, that measures should be taken to rectify it. However, I propose that the orders will require the cost of doing so to be shared equally by the parties. Section 12(h)(ii) of the Act obliges me to consider whether the applicant has taken any steps to prevent this damage. This cost sharing is based on the fact that although the damage has been developing for some years, the applicants have made no effort to remedy the problem.

17. The orders will require that the applicants obtain three quotes for the repair of the wall and that the costs of the cheapest quote, agreed on by both parties, be shared on a 50:50 basis. The work is to be carried out by the applicants within 60 days of the date of the orders and Mr Gallagher is to pay his share of the costs within 14 days of receiving a receipted tax invoice for the completed work.

18. In conclusion, orders of the Court will be that:

1. The application to remove the tree is refused;
2. The claim for compensation for repair and maintenance of the sewer is refused; and
3. Repair of the low brick wall will be required in the terms set out above.

Judy Fakes

Acting Commissioner of the Court