Payn v Allen - [2010] NSWLEC 1315

Land and Environment Court

of New South Wales

CITATION: Payn v Allen [2010] NSWLEC 1315

PARTIES:
APPLICANTS
J and R Payn
RESPONDENT
J Allen

FILE NUMBER(S): 20734 of 2010

CORAM: Fakes C - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; blocked sewer; earthenware pipes; compensation discounted on age, condition and construction of pipes

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 15/11/2010

EX TEMPORE JUDGMENT DATE: 15 November 2010

LEGAL REPRESENTATIVES:
APPLICANTS
Mr R Payn [litigant in person]
Mrs J Payn [litigant in person]
RESPONDENT
Ms J Allen [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C Hewett AC

15 November 2010

20734 of 2010 Payn v Allen

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 Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Jannali against the owner of trees growing on an adjoining property.

2 The applicants are seeking the removal of 5 palms and the pruning of a Mulberry. The applicants contend that roots from the palms have blocked their sewer and will continue to do so. They are also concerned that overhanging branches of the Mulberry will lead to deterioration of the metal roof of their garage and may damage the fibrous cement edging of the garage roof. The applicants are also seeking compensation for costs associated with the unblocking of the sewer and for repair of the pipe.

3 The applicants have owned their property since 1984. The house is in excess of 50 years old. In 1996 extensions were added to the rear of the dwelling. The sewer line runs to the east down the southern boundary of the applicants’ property then across the back lawn in a north-easterly direction and then east to the Board’s main.

4 The sewer first became blocked in August 2007. This was cleared and the blockage was brought to the attention of the respondent as roots were removed from the pipes. The pipes are mostly earthenware.

5 The closest trees to the blocked portion of the sewer are palms planted by the respondent about 15 years ago. The palms are growing on the northern side of the respondent’s property and comprise one Cocos Palm, one Washington Palm, one Kentia Palm and two Golden Cane Palms. It is also noted that there is a mature Crepe Myrtle growing in the applicants’ back garden.

6 According to plumbing invoices submitted with the application, the sewer required further unblocking in March 2009, July 2010 and again in October 2010.

7 On 21 July 2010 a CCTV camera was inserted into the sewer from an access point under the house. A DVD of the footage was tendered in evidence. At approximately 2.7m from the inlet, the pipe turns sharply to the east. From the inlet to a distance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Payn v Allen

Details

AGLC: Payn v Allen [2010] NSWLEC 1315
Case: [2010] NSWLEC 1315
Decision Date: 15 November 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an application under the Trees (Disputes Between Neighbours) Act 2006 by J and R Payn against J Allen. The applicants claimed that roots from trees on the respondent's property had caused damage to their property, specifically by blocking their sewer and damaging earthenware pipes, and sought compensation. The applicants also requested the removal of certain palm trees and pruning of a Mulberry tree, fearing future damage to their garage roof and edging.

The primary legal issue was whether the trees in question had caused, were causing, or were likely to cause damage to the applicants' property, as required by section 10(2) of the Act. The court had to determine the extent of the damage and whether the trees were the sole cause, considering other contributing factors such as the age and condition of the sewer pipes.

The court found that while the roots from the palm trees had indeed contributed to the damage, the pipes' age and condition also played a significant role. A large hole in the pipe at 4.4m and a join at 6.6m, likely due to a failed rubber ring, were additional contributing factors. The court ruled that the trees' contribution justified an order but not the complete removal of the palms. The applicants were ordered to obtain quotes for the removal and replacement of the damaged sewer pipe, with the respondent to reimburse the applicants 50% of the cost, capped at $495. The respondent was also ordered to pay the applicants $377 within 30 days for the costs associated with clearing the sewer in 2010. The applications to remove the palms and prune the Mulberry were dismissed as the court found insufficient evidence of future damage.

The final orders of the court were that the application to remove the palms be dismissed, the application to prune the Mulberry be dismissed, the respondent reimburse the applicants $377 within 30 days, and the applicants were to obtain quotes for the removal and replacement of the damaged sewer pipe within 90 days. The respondent's contribution was to be 50% of the cost of the removal and replacement of 3m of pipe, capped at $495, and to be paid within 21 days of receiving a tax invoice for the completed works.

Orders