Tasdemir v Fahey - [2009] NSWLEC 1418

Land and Environment Court

of New South Wales

CITATION: Tasdemir v Fahey [2009] NSWLEC 1418

PARTIES:
APPLICANT
Oktay Tasdemir
RESPONDENT
Murray Fahey

FILE NUMBER(S): 20703 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Removal of tree and Damage to property.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 11 December 2009

EX TEMPORE JUDGMENT DATE: 11 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Oktay Tasdemir
RESPONDENT
Murray Fahey

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

11 December 2009

20703 of 2009 Oktay Tasdemir v Murray Fahey

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Oktay Tasdemir of 57 Little Mount Street Pyrmont against the owner of an avocado tree growing at the rear of 59 Little Mount Street. The owner of that property is Mr Murray Fahey.

2 The applicant is seeking the removal of the tree as he contends that the roots from the tree have blocked and damaged his sewer and storm water pipes and the trunk has damaged the metal dividing fence.

3 In his application, Mr Tasdemir is also seeking compensation of a total of $8,718 for quotes and costs relating to the removal and replacement of the sewer and storm water pipes, replacement of the fence, plumbing costs associated with unblocking the sewer, and the cost of an arborist’s report.

4 Since the directions hearing, the applicant and the respondent have negotiated a settlement of the dispute with respect to compensation and that element of the application has been withdrawn.

5 The tree was inspected from both properties. It is a mature tree in healthy condition. According to Mr Fahey, the tree was well established when he purchased his property in 1989. It consists of three stems, the largest being approximately 450 mm in diameter at breast height. Two smaller stems arising from the base of the largest stem are about 180 and 150 mm in diameter. The main stem is growing against the metal fence and has caused some minor buckling. The base of the tree is approximately 200 mm from the base of the dividing fence.

6 The applicant produced a letter from a plumber dated 26 May 2009 in which it was stated, “the storm water and sewer pipes are damaged and dysfunctional due to substantial tree growth in and around the sewer and storm water lines”. The plumber states that both the storm water and sewer pipes will have to be replaced and reconstructed. The sewer pipes were cleared at that time but have been blocked and cleared on two occasions since. The applicant stated the storm water is completely blocked and the rear of the property floods in storms.

7 Under s10(2) of the Act, the Court must not make an order…

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.

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Details

Case: [2009] NSWLEC 1418
Decision Date: 11 December 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over the case of Tasdemir v Fahey, where Oktay Tasdemir sought the removal of an avocado tree from Murray Fahey's property, which bordered Tasdemir's residence. The dispute arose due to the tree's roots causing damage to Tasdemir's sewer and storm water pipes, as well as damage to his dividing fence. The applicant also sought compensation for the repair costs, which was later settled between the parties.

The primary legal issues before the court involved determining whether the tree caused, was causing, or was likely to cause damage to Tasdemir's property, as required by section 10(2) of the Trees (Disputes Between Neighbours) Act 2006. Additionally, the court had to consider various factors under section 12 of the Act, such as the tree's location, scenic value, and its contribution to public amenity. The court also had to assess the risk of injury to persons and the potential damage to structural roots during the replacement of the pipes.

The court found that two of the tests under section 10(2) were met, as the roots of the tree had caused damage to Tasdemir's storm water and sewer pipes and would likely continue to do so in the near future. The court ordered the removal of the tree by an arborist within three months and in accordance with the WorkCover Code of Practice for the Amenity Tree Industry. The court also ordered that the tree be removed to ground level and the stump ground to at least 200mm below grade.

The final orders of the court were that the application to remove the tree was upheld, and the respondent, Murray Fahey, was to engage and pay for an AQF level 3 arborist to carry out the tree removal in accordance with the WorkCover Code of Practice for the Amenity Tree Industry. The work was to be completed within three months of the date of the orders.

Orders