Owners of Strata Plan 5082 v Yu

[2015] NSWLEC 1519

Land and Environment Court

New South Wales

Medium Neutral Citation:	Owners of Strata Plan 5082 v Yu [2015] NSWLEC 1519
Hearing dates:	14 December 2015
Date of orders:	14 December 2015
Decision date:	14 December 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted; tree removal ordered
Catchwords:	TREES [NEIGHBOURS] Damage to property; sewer
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Owners of Strata Plan 5082 (Applicant) Sharon Yu (Respondent)
Representation:	Applicant: Ms Ann Stevens (Agent) Respondent: Ms Yu (Litigant in person)
File Number(s):	20566 of 2015

Judgment

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

1. COMMISSIONER: At the rear of the respondent’s Bexley property is a very large, mature Eucalypt - possibly Eucalyptus globulus (Southern Blue Gum). The tree overhangs several nearby properties.

2. The applicant has applied under s 7 Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the tree, reimbursement of money spent repairing damage to the roof and sewer said to have been caused by the tree, and reimbursement of the costs of the Court filing fee and managing agent’s fee.

3. With respect to the latter, Commissioners do not have the jurisdiction to award costs. Should the applicant wish to do so, a separate Notice of Motion can be filed; this would be heard by a Registrar or Judge of the Court.

4. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

5. While the application form does not indicate that injury is pressed, part of the claim form deals with potential injury arising from falling branches.

6. The application claim form includes two invoices, one for emergency work and subsequent repairs to a sewer, and the other for resecuring dislodged roof tiles. Only the invoice for the sewer makes any reference to the tree.

7. The base of the tree is within several metres of the affected sewer. The owner of the affected unit stated that the PVC sewer pipe was fully blocked by a large woody root. The overflow caused significant damage to the interior of the unit. The repair necessitated removal of paving, isolation of the hot water system located above the sewer pipe and replacement of a section of pipe. The owner indicated that there a new signs of another blockage.

8. The respondent does not oppose the removal of the tree however she does dispute the payment of the compensation. The parties were given time to consider their options. The applicant’s agent stated that the applicant would not press the orders for compensation if the respondent agreed to remove the tree.

9. I am satisfied on the evidence that the roots of the Eucalypt have caused the damage to the applicant’s sewer, and it is also likely that they will continue to do so. Therefore, as s 10(2) is met in this respect, the Court’s jurisdiction to consider what if any orders should be made is engaged. There is insufficient evidence to prove beyond any doubt that the tree caused the damage to the roof, however, it is possible that it may have done so.

10. Before making orders, the Court must consider a number of discretionary matters under s 12 of the Act. The relevant matters are discussed below.

11. The tree is a large and healthy specimen which makes a significant contribution to the general landscape, especially when viewed from nearby streets. With the expertise I bring to the Court I observed the tree to have a normal percentage of dead wood and there are several clusters of epicormic shoots on a large branch above the area of private open space for one of the units. These shoots appear to have arisen from previous pruning cuts. While it would be possible to order the ongoing removal of dead wood from the canopy and the selective and ongoing removal of weakly attached epicormic shoots, this does nothing for the management of the interaction between the roots and the sewer pipe. The sewer pipe is not an old earthenware system but a relatively new PVC installation.

12. Given the proximity of the tree to the sewer and the likelihood of ongoing problems, reluctantly, I consider the most appropriate action in the circumstances is to order the removal of the tree. As agreed by the parties, no orders will be made for any reimbursement by the respondent to the applicant for the money spent on repairs.

13. Therefore, the Orders of the Court are:

1. The application is granted in part.

2. Within 90 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the Eucalyptus sp. from the rear of the respondent’s property. The tree is to be cut to a height of between 1.5m above ground and ground level and the stump poisoned to prevent suckering and to kill the roots.

3. The work in order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent.

4. The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the work in order (2).

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Judy Fakes

Commissioner of the Court

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