Cheng v Robertson [2024] NSWLEC 1226

Land and Environment Court New South Wales

Medium Neutral Citation: Cheng v Robertson [2024] NSWLEC 1226 Hearing dates: 15 April 2024 Date of orders: 02 May 2024 Decision date: 02 May 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibits A and B. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the tree damaged a stormwater pipe – whether the tree is likely to damage a sewer pipe – application refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12 Cases Cited: Joaquim v Adamson [2009] NSWLEC 1312 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Georges River Development Control Plan 2021 Category: Principal judgment Parties: Lissa Cheng (First Applicant) John Bridge (Second Applicant) Scott Robertson (First Respondent) Bo Robertson (Second Respondent) Representation: Counsel: L Cheng (Self-represented) (First Applicant) J Bridge (Self-represented) (Second Applicant) S Robertson (Self-represented) (First Respondent) B Robertson (Self-represented) (Second Respondent) File Number(s): 2024/41828 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Bo Robertson and Scott Robertson (together, referred to in this decision as the respondents or the Robertsons) have a mandarin tree (the tree) in the back garden of their Carlton property. Their neighbours to the northwest, Lissa Cheng and John Bridge (together, the applicants), have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders to remedy and prevent damage to their property. In their original application filed on 2 February 2024 (Exhibit A), the applicants sought orders for: removal of the tree; compensation for plumbing works and related costs for repairing their stormwater pipe during 2023; costs of future investigative work to determine if tree roots have damaged, or are likely to damage, their sewer pipe, and the cost of any remediation work arising; and costs of bringing this matter to the Court, including the costs of reports and the Court's application fee. On 6 March 2024, the applicants filed amended orders (Exhibit B), in which they no longer sought an order for costs associated with making their application, but added an order seeking reinforcement or rebuild of a retaining wall on the respondents' property to prevent the collapse of paving on the applicants' property. 2. As is usual in Class 2 tree matters, the hearing took place onsite. The parties, all self-represented, showed the Court the relevant features at the site, including (but not limited to): the mandarin tree, the boundary fence, the retaining wall on the respondents' land near the common boundary, the areas on the applicants' property where pipe repair works were carried out during 2023, the approximate alignment of the applicants' stormwater pipe and sewer pipe, the lie of the land, and young palm tree shoots on the respondents' land near the common boundary. Once we had observed everything, we sat at a table on the applicants' property where the Court heard oral evidence from several witnesses, followed by submissions from the parties. I reserved my decision at the end of the hearing. 3. Prior to the hearing, the applicants filed the following evidence: * an affidavit sworn 18 March 2024 by Laurence Melville, a semi-retired civil engineer (Exhibit F); * a tree management report (17 November 2023) by Stephen Warner, a consulting arborist (Exhibit G); * copies of invoices (18 and 25 August 2023) from JJJ Plumbing and Gas for 2023 repairs to their stormwater pipe and a quote (1 February 2024) from the same (in Exhibit H); * copies of invoices (25 August and 5 September 2023) from Georges River Council for permit fees for having a skip bin on public land, and an invoice (25 August 2023) from Freddy's Skip Bins for the skip bin and disposal of waste (in Exhibit H); * copies of invoices (in Exhibit H) for costs associated with making their application, although I note here that the applicants no longer seek a costs order; and * an affidavit sworn 15 March 2024 by Ms Cheng (Exhibit E), and two affidavits sworn 13 and 19 March 2024 by Mr Bridge (Exhibits C and D respectively). 1. Prior to the hearing, the respondents filed the following evidence: * a report (5 April 2024) by Craig Cook, a plumber (Exhibit 3); * a report (29 February 2024) by Stuart Rennie, a consulting arborist (Exhibit 4); * four affidavits sworn by Ms Robertson and two affidavits sworn by Mr Robertson (all sworn 8 April 2024, and together Exhibit 1); and * four bundles of photographs and further commentary in support of their sworn affidavits (Exhibit 2). 1. Ms Cheng raised an objection to the Court accepting elements of the Robertsons' evidence that she says she did not receive within the timeframe for filing evidence ordered by Registrar Froh at the Directions Hearing of 5 March 2024: the respondents' evidence was to be filed by 4:30 pm on 8 April 2024. Ms Robertson explained that she had used an incorrect email address for the respondents when sending the respondents' evidence during the day of 8 April 2024. Ms Cheng confirmed that she received a link to the documents by email later that day, during the evening, after Ms Robertson corrected the email address. I asked Ms Cheng if she was deprived of any opportunity to digest and respond to the information within those documents. Ms Cheng conceded that she suffered no disadvantage, but insisted the Court's orders must be followed. I take her point, but I think it is reasonable to accept the respondents' evidence in these circumstances. I made this finding during the hearing, communicated this to Ms Cheng, and accepted the respondents' evidence that was filed late. 2. At the hearing were Anthony Jea Jea, plumber of JJJ Plumbing and Gas, and Laurence Melville, engineer, both for the applicants. The applicants' arborist, Stephen Warner, had been requested to attend but was unavailable. The respondents rang their arborist, Mr Rennie, at the hearing's commencement and Mr Rennie was soon present. The Robertsons also requested the attendance of a nearby neighbour, Michael Mallos, for cross-examination. The Court had no evidence from Mr Mallos. When the applicants arranged a meeting with the respondents in September 2023, the applicants invited Mr Mallos as 'a witness'. The Robertsons submitted that they felt 'ambushed' into an 'entrapment' and left the meeting (affidavit of Scott Robertson, 8 April 2024, Exhibit 1(E)). Ms Robertson explained to me that she wanted to question Mr Mallos as to the arrangements for his attendance at that meeting. I could see no relevance of this to the issues requiring determination in these proceedings, so I did not allow Ms Robertson's cross-examination of Mr Mallos, despite Mr Mallos' very eager offer to explain things. In the interest of efficiency, and aware of the range of issues raised in affidavits, I informed the parties that I would contain the evidence and submissions during the hearing to matters that would be relevant to my decision.