Yorke v Ahluwalia

[2012] NSWLEC 1204

Land and Environment Court

New South Wales

Case Title:

Yorke v Ahluwalia

Medium Neutral Citation:

[2012] NSWLEC 1204

Hearing Date(s):

27 July 2012

Decision Date:

27 July 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)The application is upheld in part.
(2)The respondent is to pay the applicant $770 within 14 days of the date of these orders.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) - damage to property; sewer pipes; compensation ordered

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

Mrs Barbara Yorke (Applicant)

Mr Vikram Ahluwalia (Respondent)

Representation

- Counsel:

- Solicitors:

Mr Paul Vaughan (Agent for the Applicant)

Mr Vikram Ahluwalia (Respondent in person)

File number(s):

20378 of 2012

Publication Restriction:

JUDGMENT

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

1. ACTING COMMISSIONER: Mrs Yorke has had sewer pipes in the rear garden of her Quakers Hill property repaired on two occasions: the first in December 2006; the second in October 2011. She says the damage was caused by roots of a neighbouring Lilly Pilly tree. She has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for compensation for the cost of those works.

2. Mr Ahluwalia, the respondent in this matter, had the tree removed last year.

3. The parties disagree on when Mrs Yorke first notified Mr Ahluwalia that roots from his tree may have damaged her pipes. I must determine if the Court has jurisdiction to make orders and, if so, what amount of compensation would be appropriate.

History

·May 2006: Mr Ahluwalia purchased his property.

·December 2006: the first repairs were done, involving replacement of a section of damaged terracotta pipe with PVC, and temporary removal of some of the fence along the common boundary. Mrs Yorke says she informed Mr Ahluwalia of the damage.

·October 2011: the second lot of repair works to the pipe.

·13 October 2011: Mr Ahluwalia says he was first informed of the damage.

·November 2011: Mr Ahluwalia lodged a permit application with Blacktown City Council for tree removal, which was first refused.

·2 December 2011: Blacktown City Council granted a permit for tree removal.

·15 December 2011: the Lilly Pilly was removed.

·April 2012: Mr Ahluwalia was notified of the Court application.

What compensation is sought?

1. The compensation sought by Mrs Yorke is as follows.

   ·Invoice 16 December 2006 For camera investigation of the pipe$319

   ·Invoice 2 8 December 2006 To replace section of terracotta pipe with PVC $3,300

   ·Quote10 October 2011 To repair sewer pipe$6,111.80 with $1,000 seniors' discount

   ·Invoices 3 & 412 & 13 October 2011 Two invoices for the repair works quoted above, each for $2,555.90$5,111.80

2. So although the application sought compensation of $9,730.80, the total cost to Mrs Yorke appears to be $8,730.80.

On-site hearing

1. Mrs Yorke says the Lilly Pilly was large and spread over her property. Mr Ahluwalia showed us where the tree had been located on his property, within two metres of the pipe. Mrs Yorke also has a bottlebrush tree within two metres of the pipe.

2. Mrs Yorke says on both occasions the plumber told her that roots found in the pipe were from the Lilly Pilly. Apart from this there is no evidence identifying to which tree, or trees, the roots belonged.

3. Mrs Yorke said that she told Mr Ahluwalia soon after the first incident, and several times since, of the damage, and that she thought the roots were from his tree. Mr Ahluwalia says that he was unaware until October 2011 that there had even been repair works carried out, despite a section of the fence along the common boundary being removed for more than a day during the 2006 works.

4. Mrs Yorke says that it would be expected, and normal, for her to notify her neighbour after the first incident, and that this is what she did. Mr Ahluwalia says that he removed the tree as soon as he became aware of the problem. This was prior to any notification of the Court application. He says that this shows he was willing to deal with the issue as soon as it was raised, without threat of legal action.

Does the Court have jurisdiction?

1. Although the Lilly Pilly has been removed, s 4(4) states that the Act applies to trees that have caused damage but have been removed.

2. Although Mr Ahluwalia says he did not receive the notification required by s 8(1) of the Act, I note that s 8(3) allows the Court to waive that requirement. The requirement is waived. Mr Ahluwalia has been allowed all reasonable opportunity to respond to the application.

3. The pipes were terracotta and may have been deteriorated. There was more than one tree in the vicinity of the damage. Nevertheless I am satisfied that it is more than likely that roots from the Lilly Pilly would have contributed to damage, and were therefore a cause of damage.

4. Therefore one of the tests at s 10(2)(a) of the Act is satisfied and I can make orders as I see fit.

Discretionary matters considered in apportioning compensation

1. At the time of the first damage Mr Ahluwalia had only owned his property for less than one year. As the Court has previously found, where damage is likely to have occurred prior to a respondent's ownership, it would be unfair for them to pay for that damage. Furthermore, Mr Ahluwalia could not be expected to know that the tree might be damaging an unseen pipe. Therefore there will be no compensation ordered for the 2006 damage.

2. In determining apportionment the Court considers other factors that may have contributed to damage, and whether, or when, the applicant notified the respondent of the damage.

3. The parties disagree on the time of notification and all evidence of this is hearsay.

4. Regarding other contributing factors, the sewer pipe may have had existing faults allowing tree roots to enter it. Roots of other trees in the vicinity may also have damaged the pipe. I am willing to accept, on the limited evidence before me, that the contribution of roots from the Lilly Pilly is approximately 30% of the damage.

5. Returning to the issue of notification, the fairest way that I see fit is to the share the benefit of doubt between the parties, splitting it 50:50. This reduces the respondent's contribution from 30% to 15% of the cost of the 2011 works. Those works cost $5,111.80. 15% of this, to the nearest $10, is $770.

Orders

1. Therefore, the orders of the Court are:

   (1)The application is upheld in part.

   (2)The respondent is to pay the applicant $770 within 14 days of the date of these orders.

   __________________________
   D Galwey
   Acting Commissioner of the Court

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