St Ingunger Pty Ltd v Falkner

[2009] NSWLEC 1118

Land and Environment Court

of New South Wales

CITATION:

St Ingunger Pty Ltd v Falkner [2009] NSWLEC 1118

PARTIES:

APPLICANT
St Ingunger Pty Ltd

RESPONDENT
Adam and Carolyn Falkner

FILE NUMBER(S):

20056 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the tree as causing damage to property, seeking compensation

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Gan v Anderson & anor [2008] NSWLEC 1257

DATES OF HEARING:

17/04/2009

EX TEMPORE JUDGMENT DATE:

17 April 2009

LEGAL REPRESENTATIVES:

APPLICANT
St Ingunger Pty Ltd, litigant in person

RESPONDENT
Adam and Carolyn Falkner, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

17 April 2009

20056 of 2009 St Ingunger Pty Ltd v Adam and Carolyn Falkner

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by St Ingunger Pty Ltd the owners of 14 Reynolds Street Cremorne against the owners of a Camphor Laurel located in the rear garden of 16 Reynolds Street. Adam and Carolyn Faulkner own that property. Mr Warwick Lewarne represented the applicants.

2 The applicants are seeking the removal of the tree as they contend that it is the cause of on-going blockages to their sewer. They are also seeking compensation of a sum of $704.00 for the most recent clearing of the sewer pipe in May 2008 and a subsequent inspection of the sewer line by CCTV.

3 The applicants also seek the replacement of at least 3 metres of sewer pipe to be paid for by the respondents.

4 The tree and its surrounds were inspected from both properties. The tree is a mature to over-mature Camphor Laurel in poor to average condition. It is located adjacent to the rear side boundary fence between the two properties and about 4 m from the applicant’s sewer line. The respondents do not want the tree removed as they enjoy the shade it provides.

5 Midway between the tree and the sewer pipe is the suckering stump of a smaller Camphor Laurel. This is on the applicant’s property.

6 The sewer pipe serves several properties before joining the board’s main. The applicant’s property is ‘upstream’ of the tree. The sewer is of earthenware construction and is approximately 150 mm in diameter. Mr Lewarne provided the information about the nature and dimensions of the pipe. Mr Lewarne’s son, a builder, installed PVC pipe from an addition to 14 Reynolds St and joined it to the existing earthenware system about 3 m from the boundary fence. The houses are 70 to 80 years old and it is likely that the pipes are of the same vintage.

7 The footage of the CCTV inspection was unavailable for viewing however, there is no dispute between the parties that the roots of a camphor laurel have blocked the sewer. Mr Lewarne stated that the roots removed by the plumber had the distinctive smell of camphor.

8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

9 It is clear in this case that the tree in question is likely to have contributed to the damage. From the evidence of regular clearing provided by the applicant, it is likely that this will continue to happen.

10 The Court must also consider a number of matters under s12 of the Act. The relevant clauses here are:

(a) The tree is substantially located on the respondents’ property.
(e) The tree adds to the scenic value of the land on which it is located and provides amenity to the respondents.
(f) Because of its size, the tree is protected by North Sydney Council’s Tree Preservation Order and is therefore considered to have some value to public amenity. [It is noted that the Council has no objection to the removal of the tree should an application be made to do so.]
(h)(i) Anything other than the tree that may contribute to the damage including any act or omission by the applicant and the impact of any trees owned by the applicant. In this matter there are several issues.
• The smaller camphor laurel (now a suckering stump) is closer to the sewer, is of the same species and is on the applicant’s property.
• The sewer pipes are earthenware and are at least 70 years old. It is reasonable to expect a degree of normal deterioration of the joints.
• In Gan v Anderson & anor [2008] NSWLEC 1257 [a matter with many similarities to this one] at 26, Commissioner Moore and Acting Commissioner Thyer make the following remarks: ‘The applicants had known of the root penetration for over 10 years and had not complained or undertaken any activity to replace or repair the sewer, merely undertaking the electric eel clearance over the whole of that period’. In Gan v Anderson the applicants did not inform the previous owners of 16 Reynolds Street. St Ingunger Pty Ltd has owned the property since 1988 and Mr Lewarne has had problems with the blockages for many years. The records provided to the Court only related to the last 10 years. Mr Lewarne stated that the previous owners of 16 Reynolds Street had not been informed of the damage.
(h)(ii) Any steps taken by the applicant or the owner of the tree to prevent or rectify damage. The applicant has had the blockages cleared at their own expense for many years. The Faulkners were told of the problem in about 2006 [they purchased the property in 2005] and have not taken any actions to prevent or rectify the damage. The applicant obtained advice from Paul Whitfield Plumbing Pty Ltd that the section of pipe on the applicant’s property should be replaced or, alternatively, relined.

11 After viewing the site and hearing the submissions, it is clear that the tree has contributed to the damage but there are other contributing factors, especially the presence of the other camphor laurel on the applicant’s property and the age and nature of the sewer pipes. If the pipes are replaced with PVC or relined, there is no need to remove the tree.

12 In the matter of compensation, it is reasonable that the respondents should reimburse the applicant for the most recent costs of clearing and inspection.

13 With respect to paying the full cost of replacing/ relining the sewer on the applicant’s property, the amount should be discounted in a manner similar to that outlined in Gan v Anderson. I consider a contribution by the respondents of 40% of the cost of replacing/ relining the sewer pipe on the applicant’s property to be reasonable. The respondents have agreed to replace or reline the sewer pipe on their property to avoid future blockages.

14 The formal orders of the Court are as follows:

1. The application to remove the tree is refused.

2. The respondents are to reimburse the applicant the sum of $704.00 for the most recent plumbing works and inspection. This is to be done within 21 days of the date of these orders.
3. The respondents are to obtain 3 quotes for the relining or replacement of the earthenware sewer pipe from its connection with the PVC pipe on the applicant’s property [approximately 3 metres] to a point on the respondents’ property where a licensed plumber is satisfied that the risk of root incursion by the Camphor Laurel is low.
4. The applicant is to provide reasonable access for the plumbers preparing the quotes. The applicant should be given at least 3 days notice of the timing of these visits. The quote must show the cost estimate for the section of pipe on the applicant’s property as a separate item.
5. The applicant is to agree to the most appropriate quote and is to provide access to his property for the works to be carried out. The applicant is to be given at least 5 days notice of the commencement of the works.
6. The works are to be completed within 60 days of the date of these orders.
7. The respondents are to pay for the works and the applicant is to reimburse the respondents for 60% of the cost of the replacement/ relining of the section of pipe on the applicant’s property. This is to be paid within 21 days of the receipt of a tax invoice for the completed works.
8. The works are to be carried out in a manner that does not damage roots over 50 mm in diameter. The trenches/ pits should be dug by hand or using compressed air or water jetting.

___________________

J Fakes
Acting Commissioner of the Court