Payn v Allen [2010] NSWLEC 1315

Land and Environment Court of New South Wales

CITATION : Payn v Allen [2010] NSWLEC 1315

APPLICANTS J and R Payn PARTIES : RESPONDENT J Allen

FILE NUMBER(S) : 20734 of 2010

CORAM: Fakes C - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; blocked sewer; earthenware pipes; compensation discounted on age, condition and construction of pipes

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 15/11/2010

EX TEMPORE JUDGMENT DATE : 15 November 2010

APPLICANTS Mr R Payn [litigant in person] Mrs J Payn [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENT Ms J Allen [litigant in person]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C Hewett AC

15 November 2010

20734 of 2010 Payn v Allen

JUDGMENT

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

1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Jannali against the owner of trees growing on an adjoining property. 2 The applicants are seeking the removal of 5 palms and the pruning of a Mulberry. The applicants contend that roots from the palms have blocked their sewer and will continue to do so. They are also concerned that overhanging branches of the Mulberry will lead to deterioration of the metal roof of their garage and may damage the fibrous cement edging of the garage roof. The applicants are also seeking compensation for costs associated with the unblocking of the sewer and for repair of the pipe. 3 The applicants have owned their property since 1984. The house is in excess of 50 years old. In 1996 extensions were added to the rear of the dwelling. The sewer line runs to the east down the southern boundary of the applicants' property then across the back lawn in a north-easterly direction and then east to the Board's main. 4 The sewer first became blocked in August 2007. This was cleared and the blockage was brought to the attention of the respondent as roots were removed from the pipes. The pipes are mostly earthenware. 5 The closest trees to the blocked portion of the sewer are palms planted by the respondent about 15 years ago. The palms are growing on the northern side of the respondent's property and comprise one Cocos Palm, one Washington Palm, one Kentia Palm and two Golden Cane Palms. It is also noted that there is a mature Crepe Myrtle growing in the applicants' back garden. 6 According to plumbing invoices submitted with the application, the sewer required further unblocking in March 2009, July 2010 and again in October 2010. 7 On 21 July 2010 a CCTV camera was inserted into the sewer from an access point under the house. A DVD of the footage was tendered in evidence. At approximately 2.7m from the inlet, the pipe turns sharply to the east. From the inlet to a distance of 4.4m the footage shows no evidence of root incursion. 8 At 4.4m the footage shows a hole in the pipe on the dwelling side of the sewer pipe that is almost the same diameter as the sewer pipe. This hole or collapse of the pipe shows soil and numerous roots. The roots are characteristic of palms. It is possible to see the roots that have been cut by the electric eel and new roots that have grown after the last clearing. 9 At 6.6m from the inlet some roots are visible in a joint between two sections of pipe. These roots also appear to be palm roots. The footage shows a section of PVC pipe at about 8.3m. There is no intrusion of roots beyond 6.6m. 10 The applicants are claiming the following amounts for works undertaken on the sewer. They are not claiming the costs of clearing the sewer prior to 2010. Item 1 - $302 for clearing of the sewer on 15 July 2010 Item 2 - $282 for CCTV inspection and DVD Item 3 - $176 for pipe work for access for the CCTV [we note that this invoice is dated some weeks after the date of the CCTV inspection] Item 4 - $451 – for clearing of roots in October 2010.