Szauter v Colvin [2011] NSWLEC 1321

Land and Environment Court New South Wales

Medium Neutral Citation: Szauter v Colvin [2011] NSWLEC 1321 Hearing dates: 8 November 2011 Decision date: 08 November 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]; future damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152 Category: Principal judgment Parties: C Szauter (Applicant) B & G Colvin (Respondents) Representation: Applicant: C Szauter (Litigant in person) Respondents: B & G Colvin (Litigants in person) File Number(s): 20695 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Redhead against the owners of trees growing on an adjoining property. 2The applicant is seeking the removal of the trees on the basis that the roots from the trees may, in the future, cause damage to an adjoining garage, sewer pipes and retaining wall on the applicant's land. 3The application refers to three trees however it was confirmed on the site that there are only two trees - a Harpephyllum caffrum (Kaffir Plum) and a Citharexylum spinosum (Fiddlewood). The trees are growing near the western boundary of the respondents' property at the northern end of that boundary. The respondents purchased their property in 1981 and the trees were present at that time. 4The applicant has owned his property for three years and wants to avoid future damage he says could be caused by the trees, and therefore future costs. 5The garage is located at the rear of the applicant's property. The trees are within about 1-1.5 m from the nearest wall. The garage was present when the respondents bought their property and is therefore at least 30 years old. It is constructed of cement blocks on a concrete slab. The land on which the slab sits has been levelled to create a pad for the slab and is on average about 500 mm above ground level on the respondents' property. 6I inspected the wall and edge of slab nearest the trees; the only visible damage was a crack along the mortar joints of some blocks near the north-eastern corner and some minor displacement of some blocks. The slab appeared in good order. 7The respondents, in their written submissions, state that the Newcastle earthquake of 1989 caused their house at the time to lift off its brick piers and settle in a different position. The applicant could not say whether the crack in the corner of the garage wall was due to the trees or the earthquake. 8With respect to the 'retaining wall', as stated above, the applicant's land is higher than the respondents' land. A new metal fence was recently installed between the two properties. In some sections the contractor placed a section of fibreboard beneath the fence panels to retain the applicant's soil and prevent it from falling onto the respondents' land. 9In the section of fence near the trees, the old metal fence has been left in place on the respondents' side and the new one constructed behind it. Removal of a panel of the old fence revealed unretained earth. There is in fact no 'retaining wall' on the applicant's land and that element of the application is no longer pressed. 10In regards to the applicant's sewer, it runs between the garage and the fence to the Hunter Water Corporation main in the lane behind the parties' properties. The applicant stated that there has been no damage or blockage to date in that part of the sewer however he doesn't want problems to arise in the future. 11The applicant's concerns are based on a brochure from the Hunter Water Corporation entitled "Do you have a monster in your backyard?" which shows a cartoon of tree roots depicted as a 'monster' gripping and breaking a sewer pipe. According to schedule B of that brochure, Fiddlewood and 'Plums' should be planted more than 10m away from a sewer. Advice from Wallsend Nurseries, printed on a 'cash sale' slip and 'sold' by someone called Mark, states that the recommended distance between sewer lines and a Kaffir Plum should be 20m or greater. 12Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. In this matter, injury is not an issue. Given that the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 is relevant. The Court in this decision determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances.