Land and Environment Court of New South Wales CITATION : Gilshenan v Hogbin & anor [2009] NSWLEC 1020 APPILCANT L Gilshenan PARTIES : RESPONDENTS S Hogbin & M Scanes FILE NUMBER(S) : 20904 of 2008 CORAM: Moore C - Thyer AC TREES (NEIGHBOURS) :- KEY ISSUES: Sewer blockage Identification of tree roots Leaves in gutters LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292 DATES OF HEARING: 21 January 2009 EX TEMPORE JUDGMENT DATE : 21 January 2009 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 21 January 2009 20904 of 2008 L Gilshenan v S Hogbin & M Scanes JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application made by Mr Gilshenan who is an owner and a resident of 40 Fleet Street, New Lambton, concerning three trees which are located on the adjacent property which is 44 Fleet Street. We note that there is no property numbered 42 Fleet Street. 2 These three trees (located on the adjacent property and toward the rear boundary adjacent to Mr Gilshenan's property) are a substantial Callistemon 4 to 5 m tall and 2 Verbenas that are some 2.5 m or so tall. Although there was some difference of opinion concerning the identification of the two Verbenas, we are satisfied that this is not a matter of relevance in our determination. 3 Some time ago, in late April or early May 2008, Mr Gilshenan had a blockage in his sewer. This was attended to by a plumber who cleared the blockage. The plumber provided a letter/invoice to Mr Gilshenan which noted, first, that the blockage was within 2 m of the pan and branch line and that it was caused by a tree root. The "chokage" was also noted as being between the pan and the sewer shaft. 4 Mr Gilshenan believed initially that the blockage was caused by the roots of the Callistemon. He subsequently concluded that the blockage was caused by the roots of the Verbena and amended his application. As a consequence, his application is now made on the basis of seeking removal of the two Verbena because of the root intrusion into the sewer and seeking removal of the Callistemon because of its deposition of leaves and other small detritus on to his property, including into his gutters. 5 With respect to the tree roots, Mr Gilshenan did not retain the roots in question and, despite providing, as part of the material given to the Court, notes from a State government legal resources reference providing information on tree root sewer blockages that indicates that the appropriate course of events, in such circumstances, is to undertake a technical identification of the species of tree from which the root came, he did not and has not done so. 6 In addition to the tree trees on the neighbouring property, there is also a substantial Frangipani located at the front of Mr Gilshenan's property. It is approximately 2 m from the front wall of the house and the front wall of the house is some 4 m from the location of the toilet in the bathroom. On the diagram which Mr Gilshenan has provided, the setback of the Frangipani from the side wall of his property is generally consistent with the setback of the toilet pan in the bathroom. Thus the distance from the Frangipani to the toilet pan is of the order of 6 m. 7 A document provided by Mr Gilshenan, published by Hunter Water Corporation, notes that Frangipani ought not be planted within 10 m of sewer lines. 8 We do not need to express any opinion has to whether or not there may be a sewer intrusion occasioned by the Frangipani or either of the Verbenas or by the Callistemon as Mr Gilshenan has an obligation, on the civil burden of proof, to demonstrate to us which tree caused the damage to his sewer. 9 In this context, we accept the uncontradicted evidence contained in the invoice/letter from his plumber that the blockage was caused by a tree root and we reject the submission, made on behalf of the respondents, that there might be some other cause, such as a collapsed sewer line – there being no evidence of such a collapse and such submission being contrary to the evidence of the plumber. 10 However, Mr Gilshenan is obliged, as a matter of law, to prove to us, on the balance of probabilities which tree or trees caused the intrusion into the sewer line – accepting, as we do, that there has-been such an intrusion. We cannot be satisfied, on the basis of the evidence that is presently before us, that either of the two Verbena trees was the specific cause of the sewer blockage. 11 The consequence of that is that this element of his application must be dismissed. 12 In dismissing this element of his application, we note that, because of the age of the property and the likelihood that the pipes will be of a vitreous clay nature, it is possible that the problem will recur. If the problem does recur and tree roots are the cause of the blockage, it is open to Mr Gilshenan, at that time, to undertake appropriate measures to identify the tree or trees which are of the specific cause of the blockage and to make some further application to the Court on the basis of that incident and the evidence arising from it. The dismissal of this element of his application does not preclude the making of some further application if circumstances change which may provide a basis for such further application. 13 With respect to Mr Gilshenan's concerns relating to the deposition of detritus and the like on his property, it is clear from the decision of Preston CJ in Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 that, for the deposition of tree detritus to found an application under the Act, it must be demonstrated that such deposition of detritus has caused, is causing or is likely in the near future to cause actual damage to Mr Gilshenan's property or is likely to cause any injury to any person – see s 10(2) of the Act. 14 In this instance, there is no evidence on any basis of such damage or injury. As a consequence, we are satisfied, on the jurisdictional basis, we must dismiss his application. 15 However, we also note that, had there been established a proper jurisdictional basis on that point, the tree dispute principle published by the Court in Barker v Kyriakides [2007] NSWLEC 292 states clearly that, for those who live in settled urban areas and have the benefits, both environmental and aesthetic, of the presence of trees, these residents have a responsibility to undertake ordinary and reasonable maintenance of their properties to deal with the deposition of tree detritus such as that which is the subject of the present application. We accept that it is appropriate to apply this principle in this case. 16 The consequence of that is that, if we are wrong on the jurisdictional point with respect to the material falling from the Callistemon, as a matter of discretion, we would dismiss this part of the application on the basis of the principle published in Barker v Kyriakides. 17 The consequence of the foregoing is the totality of Mr Gilshenan's application is dismissed. Tim Moore Peter Thyer Commissioner of the Court Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.