Meredith v Cave [2008] NSWLEC 1216

Land and Environment Court of New South Wales

CITATION : Meredith v Cave [2008] NSWLEC 1216

APPLICANT K Meredith PARTIES : RESPONDENTS I & J Cave

FILE NUMBER(S) : 20163 of 2008

CORAM: Moore C - Thyer AC

Trees (Neighbours) :- KEY ISSUES: Blocked sewer pipes Compensation Notice to neighbours of cause of blockage

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 3 June 2008

EX TEMPORE JUDGMENT DATE : 3 June 2008

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS Ms J Cave, in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C THYER AC

3 June 2008

08/20163 Meredith v Cave

JUDGMENT

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

The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONERS: Mr Meredith makes an application for the removal of three trees located on 7 Victor Parade, Shoal Bay. Mr Meredith is the owner of the property to the north. Mr and Mrs Cave own the property at 7 Victor parade but do not reside in it. 2 The three trees are a Brush Box (Lophostemon confertus), a Mock Olive (Notelaea longifolia) and a Liquidambar (Liquidambar styraciflua) - all of which are located on 7 Victor Parade in proximity with the boundary with the Meredith property. 3 We have been provided with a report from a plumber, Mr Monin, on behalf of Mr Meredith, and a report commissioned by the Caves from a firm of consulting arborists, Advanced Treescape Consulting whose principal, Mr Kingdom, attended the site and gave evidence. 4 We are satisfied, on the basis of the evidence from these two reports, that the Brush Box and Mock Olive have in the past caused damage to sewer pipes connecting to Mr Meredith's house. We note that Brush Box had been significantly storm damaged in the past and the Mock Olive which is located between the two dwellings has been extensively pruned. 5 We accept, on Mr Monin's evidence, these caused root damage to Mr Meredith's pipes. We are therefore satisfied that the first of the tests under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 is satisfied - namely that these two trees have caused damage to Mr Meredith's property. 6 Ms Cave has indicated to us she accepts that the trees have caused that damage. On the basis of Mr Monin's evidence and consistent with that evidence and the report of Mr Kingdom, it is appropriate that those trees be removed. 7 Ms Cave estimates that she would need some four weeks for that removal to be effected. We are satisfied, on the basis of the evidence cited, that it is appropriate to order the removal of those two trees and for that removal to be at that tree owners' expense. We propose to allow, on a prudent basis, two months from the date of the Court's orders, for that to occur; to order that the removal be undertaken by an AQF level 3 qualified arborist with appropriate insurances and that the removal be at the tree owners' expense. 8 The more difficult element of Mr Meredith's application concerns the Liquidambar located in the Caves' rear yard. Mr Monin's report, in this regard, is equivocal. After noting the height and location of this tree, Mr Monin continues: This [sic] roots from this tree will have a [sic] impact on pipeline and building foundations over a very large radius. 9 There is no evidence from Mr Monin that the roots of the Liquidambar are in fact presently impacting on Mr Meredith's sewer - a proposition that Mr Meredith accepted in discussion with us during the course of the hearing. Mr Kingdom's report provides no assistance to Mr Meredith's application for removal of this tree as it does not show that there are any roots that are likely to be impacting on Mr Meredith's sewer pipe. 10 We are therefore were satisfied that none of these tests in s 10(2)(a) of the Act are satisfied with respect to any root intrusion by the Liquidambar into the Meredith property. 11 With respect to the matter of falling of leaves and fruit from the Liquidambar into the Meredith property, the Court has considered the question of the responsibility of tree owners and neighbours and the need for those who have the benefit of trees (in both an aesthetic and environmental sense) in urban settings to undertake appropriate levels of maintenance within their properties. That matter was discussed in Barker v Kyriakides [2007] NSWLEC 292 where the Court held that, under such circumstances, it was reasonable to require that property owners undertake ordinary maintenance in such circumstances as the reasonable price of enjoying of such trees in their environment. We do not see any reason in this case to depart from that principle. As a consequence, there is no basis upon which we could order interference with or removal of the Liquidambar because of the dropping of leaves and the like into the Meredith property. 12 The third element of Mr Meredith's application is a claim for compensation of $554.40 for an incident of root removal by electric eel and video filming of the inside of his sewer pipe. 13 We are satisfied by correspondence provided by Mr Meredith (and was acknowledged as likely to have been the case by Ms Cave) that Mr Meredith notified his neighbours of a blockage of the sewer pipe in 2006 and expressed concern that blockage would be repeated if there was no action taken to remove the trees identified. The owners of the trees took that no action to remove the trees after that date. The incident for which compensation is sought took place in mid-2007, some to seven or eight months after the owners of the trees were put on notice of Mr Meredith's concerns. We are satisfied under those circumstances that the owners of the tree had been given an appropriate opportunity to address the likelihood of future damage to Mr Meredith's sewer pipe and did not do so. 14 As a consequence, having failed to do so, we are satisfied that we ought order payment by the Caves of the sum of $554.40 to Mr Meredith. We propose to order that such a payment is to be made within 90 days of the date of the Court's order. 15 The final matter that is raised by Mr Meredith is his seeking an order that there be a further electric eel process undertaken in his sewer pipe, at the Cave's expense, after the trees were removed. In this regard, we note that the last instance of blockage took place in mid-2007 but that the application to the Court was made on the 28 March 2008 - a period of some nine months after the blockage took place. 16 We are satisfied that, although the cost of rectifying that blockage should, as we have determined, fall on that tree owners, we are not satisfied that the cost of clearing any additional roots which may have intruded into the pipe from that time until lodgement of the application (and subsequent dealing with it by the Court only some two months after its lodgement) should fall on the tree owners. 17 It was open to Mr Meredith to have lodged the application with the Court immediately after the blockage in mid-2007 and to have sought to conciliate the matter with his neighbours during the intervening period of time. No reason is advanced to us for not following this course. We therefore decline to make any order with respect to clearing any roots which might have gone into the sewer line in that intervening period. 18 The final matter that we should deal with concerns the future of Mr Meredith's sewer now that risk from the presently intruding roots is to be removed effectively by the cutting down and poisoning of the two trees that are to be the subject of the Court's orders. Mr Meredith is now clearly on notice that he is the proprietor of a property with aged sewer pipes with deteriorated pipe joints. The question that may arise in the future, should he lodge any further application with respect to the Liquidambar if its roots intrude into his sewer pipe, will be the question of what actions (if any) he may have taken as well and what actions (if any) his neighbours may have taken in that regard to the matter as the Court is required to take into account such matters pursuant to s 12 of the Act. 19 As a result of our determinations set out above, the application will be granted, in part, subject to the terms of the orders which we have outlined. Tim Moore Peter Thyer Commissioner of the Court Acting Commissioner of the Court