Panjratan v Chang

[2008] NSWLEC 1136

Land and Environment Court

of New South Wales

CITATION:

Panjratan v Chang [2008] NSWLEC 1136

PARTIES:

APPLICANT
Sulabha Panjratan

RESPONDENT
Susan Chang

FILE NUMBER(S):

21302 of 2007

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- removal of three trees, damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

26/03/2008

EX TEMPORE JUDGMENT DATE:

26 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Dr Mrs S. Panjratan, litigant in person

RESPONDENT
Ms S. Chang, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

26 March 2008

21302 of 2007 Sulabha Panjratan v Susan Chang
(originally filed as Panjratan v Magnuson)

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Sulabha Panjratan of 11 Wistaria Place Baulkham Hills for the removal of three trees from the property owned by Ms Susan Chang of 9 Wistaria Place Baulkham Hills. This application was originally made against the previous owner of 9 Wistaria Place, Mr Peter Magnuson. The property changed hands in January 2008 when these proceedings had commenced. The respondent was assisted at the on-site hearing by a friend, Mr John Drinkwater, as English is not Ms Chang’s first language.

2 The applicant is seeking the removal of three trees, a Jacaranda mimosifolia, Morus sp. (Mulberry) and Macadamia sp. growing in the rear garden of 9 Wistaria Place within 0.5 to 2 m from the boundary fence she shares with Ms Chang. Mrs Panjratan wants the trees removed because she contends that roots from these trees have blocked her sewer on numerous occasions since 1990. The last five occasions were documented as January 2001, July 2005, September 2005, November 2005 and 4th July 2006. On the last two occasions, the previous owner of 9 Wistaria Place cleared the applicant’s sewer but no roots were kept.

3 The applicant’s sewer runs from the side of the house, under what is now a rose garden beside an established swimming pool to the Water Board’s main which runs along the rear boundaries of the properties. The overflow/ backwash pipe from the pool also enters the sewer at the side of the house.

4 The board’s sewer was cleared of roots on 5th July 2006 and again in October 2006. This took place in the respondent’s property. No roots were identified and there are many other trees in this property.

5 The respondent does not want the trees removed as she bought the property because of the trees. As a tai chi teacher she feels connected to natural things. She was not informed by the Real Estate agent that an application under the Act had been made against the previous owner. She also stated that she did not want to cause hardship for her neighbour.

6 An application was made to Baulkham Hills Shire Council for removal of the trees. The Council replied that they had no objections under their Tree Preservation Order to the removal of the trees however, they did not require the removal of the trees.

7 Under s10(2) of the Act, the Court cannot make an order unless it is satisfied that the trees have caused, are causing, or could, in the near future, cause damage to property or injury to persons.

8 Due to the proximity of the trees to the sewer, it is likely that the roots of the trees have penetrated cracks in the earthenware pipes and have thus caused blockages. However, no blockages have occurred since July 2006 when both the applicant’s sewer and the Water Board’s main were cleared. This is a period of some 20 months after a period of frequent blockages in 2005/2006.

9 Under s12 of the Act, other matters must be considered. The trees do contribute to the amenity and scenic value of the land on which they are growing and provide a screen between the two properties as there is only a low mesh fence rather than a usual 1.8 m solid fence. Under s12(h) factors other than the trees that have contributed to the problem are the age and nature of the pipes; that is, terra cotta pipes of in excess of 28 years old [the time that the applicant has resided there]. It is also likely that blockages in the board’s sewer may have contributed to the ‘upstream’ blockage in the applicant’s property which is virtually the end of the street.

10 The application to remove the trees is refused however the orders of the Court are that should the applicant’s sewer become blocked, the respondent is to reimburse the applicant for the cost of clearing the sewer to the board’s main if the plumber can prove that the cause of the blockage is tree roots in that section. This is to be paid within 21 days of receiving a receipt for the tax invoice from the plumber and being shown the evidence of the blockage.

11 An alternative course of action to be determined by the applicant and the respondent is that the applicant is to obtain 3 quotes from licensed plumbers and Sydney Water for the lining or replacement of the sewer pipes. Should agreement be reached between the two parties, the cost is to be shared on a 50:50 basis.

___________________

J Fakes
Acting Commissioner of the Court