Land and Environment Court of New South Wales CITATION : Chu v Blissett [2009] NSWLEC 1200 APPLICANT Chu, Diana & Anor PARTIES : RESPONDENT Blissett, Norman & Anor FILE NUMBER(S) : 20147 of 2009 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- damage; sewer. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 26 May 2009 EX TEMPORE JUDGMENT DATE : 26 May 2009 APPLICANT Diana Chu (Litigant in person) LEGAL REPRESENTATIVES: RESPONDENT Norman Blissett (Litigant in person) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 26 May 2009 20147 of 2009 Diana and Edward Chu v Norman and Margaret Blissett JUDGMENT 1 ACTING COMMISSIONER: Mr and Mrs Chu are the owners of 54 Dawson Street, Epping. They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage by a Sydney Blue Gum (the tree) growing on adjoining land to the west. They seek orders fro removal of the tree. 2 Mr and Mrs Chu bought their home in 1991. The house was built in about 1980, and is three storeys high beside the tree. They claim that their sewer pipe is always blocked by roots of the tree, that roots of the tree may damage the foundation of their house, that the fence and a garden edge have been damaged by the tree, and that their roof may be damaged by branches of the tree. 3 Mr and Mrs Blissett are the owners of 16 Magnolia Avenue, Epping (the property), the adjoining land to the west where the tree is growing. They have lived there since 1964 when what is now the Chus' land was a peach orchard. They planted the tree in about 1980 to screen the new three storey house. 4 I observed the tree and the dividing fence. The tree is a "tree" within the meaning of that term in s 3(1) of the Act. Both parties agree that the fence is approximately on the common boundary. As the trunk of the tree is entirely on the Blissetts' side of the dividing fence, and a small portion of the root crown is on the Chus' side, I find that the tree is situated principally on the property, meeting s 4(3) and s 7 of the Act. As a consequence there is an application that the Court may determine. 5 Mr and Mrs Chu had submitted a DVD of their sewer that I was unable to view prior to the hearing. While their other evidence was investigated at the hearing, I reserved my decision until after I had viewed that DVD. The tree 6 The tree is a Sydney Blue Gum (Eucalyptus saligna), about 20 m tall with trunk diameter of about 0.8 m and crown spread of about 15 m except where pruned clear of the corner of the Chus' house. It has a single trunk that branches to seven stems from about 5-7 m above ground. Those stems and other branches are well tapered and not heavily end loaded. I did not observe any included bark or other signs of weak branch connection. The lower trunk and base appear to be sound with no root plate lift or other signs of poor stability in the ground. The root crown has pushed up nearby soil in a manner that is common at the base of large trees. The tree appears to be healthy, and in early maturity at about 30 years of age. I observed five dead branches in the crown, each about 3-5 cm diameter and 2-3 m long. The trunk of the tree is 3 m from the closest brick pier supporting the Chus' verandas, and 4.4 m from the corner of the main house. Damage: Falling branches 7 The parties agree that no dead branches have fallen from the tree. Mr and Mrs Chu say that one live branch about 6 cm diameter and 1.5 m long fell onto their property six months ago, and that live branches up to 1 cm diameter fall in stormy conditions, but none have caused damage. On that basis I find that falling branches have not caused damage and is not likely to cause damage in the near future, thus none of the tests in s 10(2)(a) of the Act are met in this regard. Dividing fence 8 Mr and Mrs Chu claim that the dividing fence has been damaged by the tree. I observed that the post beside the tree may be slightly lifted and pushed out of line by the base of the tree. However, the parties agree that the observed damage may be because the fence was built in a shoddy manner some 14 years ago. On that basis, I am not sufficiently satisfied that the damage is caused by the tree. However, If I was satisfied that the tree had damaged the fence, and was likely to cause further damage in the near future, thus meeting the tests in s 10(2)(a) of the Act, I would as a matter of discretion not order removal or any interference with the tree on the basis of that minor damage. Garden edge 9 Mr and Mrs Chu claim that a dry-stacked line of bricks that form a garden edge located about 0.1 m on their side of the fence, has been damaged by the tree. I observed that other parts of the edge, away from the tree were damaged in a similar manner. On that basis, I am not sufficiently satisfied that the damage is caused by the tree. However, If I was satisfied that the tree had damaged the garden edge, and was likely to cause further damage in the near future, thus meeting the tests in s 10(2)(a) of the Act, I would as a matter of discretion not order removal or any interference with the tree on the basis of that minor damage. Roof 10 Mr and Mrs Chu claim that branches of the tree may damage their roof. They last inspected their roof in 2000, and found no damage at that time. On that basis I find that the tree has not damaged the roof and is not likely to cause damage in the near future, thus none of the tests in s 10(2)(a) of the Act are met in this regard. Sewer 11 I have viewed the DVD of the sewer pipe dated 28-2-2009. I understand that the measure starts at 0.0m under the driveway, that point being down the line and furthest from the tree, and returns to about -12 m at the bend near the tree, then to -21 m at the inlet on the western side of the house. 12 I observed that the pipe is jointed at about 1 m intervals, and that there were small roots at most joints from 0.0 m to -11 m, with most roots around -7 m, that being the area under the gardens at the rear of the Chus' house. I also observed that the pipes either side of the bend at -12 m both seemed to have a crack along their length, but with no roots at that crack. I also observed that there were no roots from the bend at -12 m to the inlet on the western side of the house, that being the area of pipe closest to the tree. 13 At the hearing, Mr and Mrs Chu advised that they had removed in 2007, a very large berry tree and two Cocos Palms that grew in the garden bed near the bend in the sewer pipe. They also advised that they removed in about 2008, a hedge that grew in the garden bed above the sewer pipe at the rear of their house. They say that their plumber told them that the roots in the pipe are from the tree, but no other evidence such as identification of the species of tree that the roots are from, has been provided. 14 On the basis that root entry to the sewer pipes is in the section furthest from the tree, that Mr and Mrs Chu have recently removed trees on their property that were closer than the tree, and that the roots in the sewer have not been positively identified, I am not sufficiently satisfied that the roots are from the tree. However, if I was satisfied that roots of the tree were in the sewer, I would not necessarily find that the roots had damaged the sewer, and were likely to cause damage in the near future, as the pipes are about 30 years old and may no longer be fit for purpose. Further, even if I found that the tree met the tests in s 10(2)(a) of the Act with regard to the sewer, I would as a matter of discretion not order removal or any interference with the tree on that basis, and would more likely order repair or replacement of the sewer. Foundations 15 Mr and Mrs Chu claim that roots of the tree may damage their house foundations. They have not identified any damage, and have not provided any evidence that roots of the tree are under their house. On that basis I find that the tree is not likely to cause damage to their house foundations in the near future, thus none of the tests in s 10(2)(a) of the Act are met in this regard. Conclusion 16 As I have found that none of the tests in s 10(2)(a) of the Act are met by the tree, the Court does not have power to make orders. As a consequence the application will be dismissed. Orders 17 The orders of the Court are: 1. The application is dismissed. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.