Smith v Thomson

[2008] NSWLEC 18

Land and Environment Court

of New South Wales

CITATION:

Smith v Thomson [2008] NSWLEC 18

PARTIES:

APPLICANT
Kenneth George Smith

RESPONDENT
Mrs F. Thomson

FILE NUMBER(S):

21065 of 2007

CORAM:

Hoffman C - Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Damage to property by a tree

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

14/01/2008

 
DATE OF JUDGMENT: 

14 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Kenneth George Smith, litigant in person

RESPONDENT
Mrs F. Thomson, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C
Fakes AC

14 January 2008

21065 of 2007 Kenneth George Smith v Mrs F. Thomson

JUDGMENT

1 This is Appeal No. 21065 of 2007 between Kenneth Smith and Mrs F. Thomson. Mr Smith lives at No. 5 Cormiston Avenue, and Mrs Thomson lives at No. 8 Majors Bay Road. They share a corner post boundary as neighbours, however they are not back to back neighbours.

2 The hearing was held part way on both properties by visually inspecting the subject tree and looking at the alleged damage. The hearing was also attended by Mr Colin Peterson of No. 6 Majors Bay Road which is back to back neighbours with Mr Smith.

3 On inspection Mr Smith confirmed his evidence of three occasions in the past two years of sewer damage and repair works that are he said, to be caused by roots of the subject tree. I note Mr Smith has not claimed compensation for these events. Mr Smith also stated that dead branches had fallen onto the fence between his property and No. 7 Cormiston Avenue.

4 The tree itself is a large Camphor Laurel tree and covers completely the rear third of Mrs Thomson’s property and it overhangs several other neighbours. The trunk is located close to the rear boundary adjoining Mr Peterson’s property and the root ball actually projects over the fence line into Mr Peterson’s property adjoining a garden shed on his property.

5 On inspecting Mr Smith’s property we observed the subject tree is the only likely source of roots in the vicinity that might have caused the damage to his sewer and Commissioner Fakes and myself formed the opinion that cl 9(2)(b) of the Trees (Disputes Between Neighbours) Act 2006 activates the jurisdiction.

6 Mr Smith mentioned earlier damage to his garage but we saw no evidence of that in land adjacent the garage. There is a surface drain laid in concrete pavers along the side boundary between No. 7 Cormiston Avenue, but we could see no lifting of the pavers nor any surface roots projecting above the ground, where we could observe it, between the tree and the garage and the garden shed. They are the closest buildings on Mr Smiths property to the tree.

7 We did notice also that the branch drop I referred to by Mr Smith actually occurred above No. 7 Cormiston Avenue. Although the branch appears to have more or less bounced half way onto his property, it had not damaged either the garden shed nor his garage. In standing beneath the tree on Mr Smith’s property there is very little canopy or branches overhanging his property. We therefore conclude that in regard to potential damage to persons on Mr Smiths property it is unlikely.

8 Mr Peterson showed us much greater canopy of the tree overhanging his property and also mentioned damage he had occasioned in the past and anticipates in the future. However, he had made no application under the Act and is not the applicant in these proceedings. Mr Peterson also mentioned leaf drop as a concern and we advised him of the test case Barker v Kyriakides [2007] NSWLEC 292 that found that leaf drop is not a reason to activate the jurisdiction.

9 Mrs Thomson said she did not oppose the removal of the tree.

10 However in considering Mr Smith’s application there is no basis under the Act to order the removal of the tree. But there is reason to order that any future sewer damage should be dealt with by obtaining two quotes for clearing any blockage and repairs to Mr Smith’s pipes and that he should advise Mrs Thomson of quotes. The lowest quote to be accepted and when the invoice is presented Mrs Thomson is to pay it within 30 days.

11 The Orders of the Court therefore are:

1. The appeal is upheld.
2. That in any future damage to the sewer line on No. 5 Cormiston Avenue, Concord, the owner should obtain two quotes for the clearing of any blockage and repairs to the sewer line and advise the owner of No. 8 Majors Bay Road of the quotes. The lowest quote to be accepted and when the invoice is presented the owner of No. 8 Majors Bay Road shall pay it within 30 days.
3. This judgment and orders to be forwarded to Mr J. S. Lucas and Co. Solicitors of 39A Majors Bay Road, Concord. He is the solicitor of Mrs Thomson and he can advise her in regard to it.

___________________

K G Hoffman
Commissioner of the Court

___________________

J Fakes
Acting Commissioner of the Court
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