Pandey v Wallace

[2017] NSWLEC 1664

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pandey v Wallace [2017] NSWLEC 1664
Hearing dates:	22 November 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [22]
Catchwords:	TREES [NEIGHBOURS] : Damage to property; risk of injury; sewer; sufficiency of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Rachna Pandey (Applicant) Lisa Wallace (Respondent)
Representation:	Applicant: Rachna Pandey (Litigant in person) Respondent: Lisa Wallace (Litigant in person)
File Number(s):	2017/266373
Publication restriction:	No

JUDGMENT

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

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two palm trees growing on the respondent’s adjoining Ingleburn property. The orders are sought on the basis that the roots of the palms have caused, and will in the future cause, damage to the applicant’s property and falling fronds could cause injury to anyone on her property.

2. The applicant is also seeking a number of other orders including: reimbursement of 50% of the cost of the replacement of a section of concrete path and replacement of sections of two pipes – a sewer pipe and stormwater pipe which the applicant alleges were damaged by the palm trees; and replacement of retaining structures at the base of the dividing fence. A number of other orders sought by the applicant cannot be considered as they relate to trees not growing on the respondent’s land or refer to unspecified potential future damage or injury. If issues arise from other trees, or the circumstances change and there is new damage or injury arising from the palm trees, a new application can be made.

3. The respondent does not wish to remove the palm trees which were present when she purchased her property in 1996. She has offered to remove dead fronds before they fall and to replace the retaining structures (boards) at the base of the fence. The respondent disputes the palm roots being the cause of the damage to the pipes and notes the age of the terracotta pipes as being the most likely reason for their failure.

4. The palms are a Bangalow and a Queen/ Cocos palm growing on the respondent’s property close to the common side boundary fence.

5. 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.

6. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”. In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court’s jurisdiction.

7. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

The fence

8. The metal dividing fence was erected in 2002 shortly after the applicant purchased her property. Because of the slight difference in ground level between the parties’ properties, at the base of each panel of the fence on the applicant’s side is a board which acts to retain the soil from the respondent’s side.

9. Two sections of board, those closest to the palms, are bowed outwards towards the applicant’s dwelling. Ends of palm roots were observed behind the boards. While the ‘damage’ is minimal, it nonetheless satisfies s 10(2)(a) and engages the Court’s jurisdiction to make orders under s 9 of the Trees Act. Orders will be made for the rectification of the boards by the respondent and for the applicant to provide access to do so.

10. Otherwise the dividing fence is in very good order.

The plumbing

11. According to evidence adduced during the on-site hearing, for at least 8 months before she called the plumber out to repair the pipes, the applicant had a problem with water draining from the kitchen sink. When the plumber was called, an inspection point was installed to facilitate investigation of the sewer. The area of damage or blockage was discovered in the vicinity of one of the palms. The applicant has not provided any evidence such as CCTV footage, photographs or a plumbing report which confirms the presence or otherwise of roots within the pipe or identifies the cause of the drainage problem. When asked, the applicant stated that she had not advised the respondent of a possible problem with the sewer until the excavation occurred.

12. The applicant’s plumber proceeded to remove a section of concrete path and to uncover the terracotta sewer pipe and a nearby PVC stormwater pipe. On the day of the excavation the respondent was invited into the applicant’s property and observed the roots in the soil around the pipes. As the respondent was holding a family function that day she was unable to take any further action.

13. Photographs included in the application claim form (Exhibit A) taken during and excavation and replacement process show the presence of palm roots in the surrounding soil as well as sections of damaged PVC and terracotta pipes. The damage (large holes) appears to be mechanical and possibly occurred during the excavation as it appears to have been caused by a tool such as a crow bar. There is soil inside the PVC pipe but no obvious root growth. Similarly there is no evidence to show root penetration of the terracotta pipe.

14. A statement at the end of the plumber’s tax invoice states [as best as can be deciphered] :

Tree roots definitely seemed to come from 2x palm tree right near sewer pipe from over fence Frangipani tree did not seem to have any effect on sewer.

15. There is no mention of roots anywhere else on the statement including within the job description. The Frangipani referred to is growing on the applicant’s property. There is no statement that roots were found within either of the pipes or the means by which the roots had caused the alleged damage.

16. Neither party engaged an arborist to provide expert opinion although the respondent’s material (Exhibit 1) includes a number of articles on roots and sewers and palm roots. With the arboricultural expertise I bring to the Court, I find it unlikely that palm roots had penetrated the pipes. While the photographs clearly show palm roots coming from under the fence, the mass/density of them does not appear to be sufficient to generate the forces required to damage a pipe. The photographs show that the PVC storm water pipe closest to the fence and thus closest to the palms is not deformed or displaced. The photographs also show that the remaining strip of concrete path closest to the fence had not been displaced.

17. While it is hypothetically possible that root pressure may have dislodged a join in the pipes, there is no evidence that this happened. It is similarly that something else blocked the pipe [the respondent stated that the applicant’s property had been tenanted for many years] or that the pipes had otherwise moved or deteriorated.

18. I cannot be satisfied to the extent required by s 10(2) of the nexus between the palms and the pipes. As s 10(2) is not met for this element of the application, the claim for compensation is dismissed. Similarly, there is no evidence to suggest that damage is likely to be caused to the applicant’s plumbing in the time frame considered by the Court as the ‘near future’.

Injury

19. The failure of palm fronds is predictable; the palm essentially gives ‘notice’ of the event. The lower fronds gradually decline, then brown and die, droop, and then finally drop. This affords an opportunity to remove them or to avoid them.

20. Some fronds overhang the applicant’s property; most fronds overhang the respondent’s property. At the time of the hearing there were no dead fronds as the respondent had recently had the palms pruned. The respondent stated that in 21 years of living with the palms no one has been injured. The fronds are not especially large or heavy, and unlike some species, are free of spines. The applicant’s side passage is relatively narrow and is afforded some protection by the eaves of the dwelling. Hence the ‘target’ area is relatively confined and the likelihood of injury is very remote.

21. I am not satisfied that the risk of injury is sufficient to satisfy s 10(2)(b) and as such, no Court orders will be made for either removal of the palms or removal of fronds however the respondent has been made aware of the potential problems.

Orders

22. On the basis of the evidence before me and with the benefit of the site inspection and hearing from the parties, the Orders of the Court are:

1. The application to remove the two palm trees is dismissed.

2. The application for compensation is dismissed.

3. Within 30 days of the date of these orders, the respondent, or her agent, is to make good the retaining boards at the base of the two sections of dividing fence closest to the palm trees.

4. The applicant is to provide all reasonable access on reasonable notice for the purpose of carrying out the works in (3), and if necessary, also for the purpose of quoting should the respondent choose to engage a contractor to carry out the work on her behalf.

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 04 May 2018