Blatchford & anor v Clubley & anor [2013] NSWLEC 1228

Land and Environment Court New South Wales

Medium Neutral Citation: Blatchford & anor v Clubley & anor [2013] NSWLEC 1228 Hearing dates: 15 November 2013 Decision date: 15 November 2013 Jurisdiction: Class 2 Before: Moore SC Galwey AC Decision: See para (26) Catchwords: Roots in sewer; damage to property; risk of injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: J Blatchford and L Bianchi (Applicants)

G Clubley and S Ieraci (Respondents) Representation: Applicants in person

Mr D Loether, solicitor (Respondents) Solicitors N/A (Applicants)

Bartier Perry (Respondents) File Number(s): 20589 of 2013 Publication restriction: Nil

EXTEMPORE Judgment 1COMMISSIONERS: Three Leopard trees stand in the front setback of a house in Birchgrove. The owners of the neighbouring property to the north have made an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking an order for removal of the tree (which is in fact three separate trees, but for the purposes of these proceedings have been treated as a single tree) and for an order for the owners of the tree to meet the cost of replacement of their household sewer pipe. 2A number of other matters raised in the application concerning costs are not within the jurisdiction of Commissioners of the Court and are therefore matters with which we do not propose to deal. 3The application is based on what are said to be a number of facts that satisfy the jurisdictional tests in s 10(2) of the Act. Those jurisdictional tests require us to be satisfied that the tree has caused, is causing, or is likely in the near future, to cause damage to the applicants' property, or that the tree is a likely risk of injury to a person. The question of risk of injury is not confined to risk of injury to persons on the applicants' property. 4There are a number of factual matters that are relied upon by the applicants to satisfy these jurisdictional tests. 5The first is that there were tree roots in their sewer pipe, demonstrated by a number of photographs that have been tendered in evidence. 6Second, that as a consequence of the roots in the sewer pipe, there has been, on at least two occasions in the current year, blockages of the sewer that have required the intervention of a plumber to clear that, with that blockage constituting either damage to the pipe, or a risk of injury to a person. They rely on the demonstrated existence of roots shown to us in an excavation in the side passage to their house, immediately adjacent to the respondents' house, of the existence of roots in a trench which we were informed had been dug by the respondents to the proceedings. 7Further, they rely on cracks in concrete, being cracks in either a riser in the path between the two houses but on the applicants' property, or in cracks on the horizontal surfaces in the vicinity of the sewer inspection point. Photographic evidence was provided to us of a crack that had existed in a retaining wall on the respondents' properly prior to that wall being cement rendered in March 2013. 8To the extent that that cracking may have constituted damage to that wall, we are satisfied on the evidence that that wall is located on the respondents' properly and therefore does not satisfy any jurisdictional test in these proceedings. The applicants also rely on the displacement of a small element of flashing on the bargeboard at the upper end - at the southern end of the upper storey balcony - and what they describe as branch rubbing on the roof and a skylight of their property from branches of the tree. 9The final element upon which they rely is what they describe as the trip hazard from the detritus that is deposited in the side passage between the two dwellings, but located on their property, thus creating a trip hazard for those persons who use that passageway as an access to a door of their house. 10It is against ss 10(2)(a) and (b) of the Act that we need to assess those various matters to establish whether we have jurisdiction to consider, whether or not we should order intervention with or removal of the tree and whether there is any appropriate basis upon which we can order payment to be made for replacement of the sewer pipe. 11We turn first to the question of the roots in the sewer. We observed the proximity of the three stems of the tree at about a metre and a half from the sewer inspection point down which we have seen tree roots, using tree in a sense to which I will return, growing in the photographs to which we have been taken. We have also seen tree roots, again in a sense to which I will return, growing in a further inspection point further up the side passage towards the house some 4 m or so from the inspection point immediately adjacent to the roadway and its footpath. 12In the vicinity as well of the Leopard trees, there is a substantial Ficus vine growing on the retaining wall of the respondents' properly. It has at least three substantial root points entering a cleared area of the pavement from which the asphalting has been removed. From the 1940s plan of subdivision provided by the applicants in their evidence, it would appear that that Ficus may (and, it is not necessary for us to reach any conclusion as to whether it is, rather that it may be) be planted in the footpath and thus although it constitutes a tree for the purposes of the Act (as provided for in the Trees (Disputes Between Neighbours) regulations) it may well be growing on council property. Thus it may not be a tree that belongs to the respondents in the proceedings, nor a tree that is situated on the respondents' land - situated on the land being applied by the Court to the point where the roots of the tree enter the ground, rather than where any other element of the structure exists. 13One of the respondents has indicated his opinion that the roots that are disclosed in the sewer are roots from the Ficus vine, rather than roots of the Leopard tree. 14In his closing submissions, one of the applicants said "Leopard trees are the main culprit", thus impliedly conceding at least the possibility that the roots that may be in the sewer may, at least in part, be roots that come from the Ficus vine. 15In any event, the onus lies on the applicants under this legislation, to demonstrate to us on the balance of probabilities to the degree of comfortable satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that the roots that are blocking the sewer are roots of the Leopard tree and not roots of the Ficus vine. 16We have no evidence that could satisfy us on that basis that the roots are exclusively those of the Leopard tree, even though we do not discount the possibility that some of the roots may be from the Leopard tree. We are certainly unable to reach any conclusion as to what roots may have caused the totality of the blockage of the sewer. 17Therefore, taking the applicants' case at its highest on the question of roots in the sewer, that is, that the blockage satisfies either s 10(2)(a) and/or s 10(2)(b), the applicants have not demonstrated that the roots that are causing such damage or risk of injury are roots from the Leopard tree, rather than roots from the Ficus. On that basis, we cannot be satisfied that that jurisdictional test has been met with respect to the root blockage in the sewer. 18We turn now to the question of the remainder of the matters raised by the applicants concerning the tree. First, we are satisfied that the detritus that is deposited from the tree in the side passage is capable of causing, on the photographic evidence available to us, a trip hazard for a person using that passageway. That, in itself, is sufficient to engage s 10(2)(b) of the Act for that purpose. However that requires us to then consider matters of discretion as to whether we should order intervention with the tree on that basis. 19The Court established, early on in dealing with tree dispute matters, a tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292, a case that said that those who live in an urban environment and have the urban environmental and aesthetic benefits of trees, have a responsibility to undertake ordinary domestic maintenance with respect to fruit, nuts, berries, small elements of branch detritus, leaves and the like that are deposited onto their property and that under those circumstances, the failure to do so will not constitute any basis as a matter of discretion for ordering the removal of or intervention with a tree. We see nothing in these proceedings that would cause us to depart from that principle. 20The second matter that is relied upon is the risk of injury or damage that would arise if there were whole or significant failure of any of the three elements of the Leopard tree. 21We have carefully examined the various points of attachment of the branches to the tree. We have examined the place where the trees grow into the ground. We are unable to observe any lifting of the root plate in any sense. There is no significant displacement beyond the mere minor cracking shown in the preMarch 2013 photograph of the retaining wall. There is no unsatisfactory attachment element within the crown of the tree, although one of the elements of the tree has co-dominant stems. There is no sign of any significant included bark in the tree at that point and all the other branch structures do not demonstrate to us the presence of any included bark whatsoever. 22We are not satisfied that, at the present time, there is any likelihood of tree failure or collapse consistent with the timescale discussed in Yang v Scerri [2007] NSWLEC 592 - that is, that for the near future a rule of thumb applied will be of approximately 12 months from the date of hearing. There is no basis upon which we can conclude that there is any significant likelihood whatsoever of any failure of any of the three elements of the Leopard tree within the next 12 months and that therefore none of the jurisdictional tests on that basis have been satisfied. 23Finally, we turn to the question of the displacement of the element of flashing at the southern end of the balcony of the applicants' property. There is a small branch of one of the stems of the Leopard tree in its vicinity. There is no other possible explanation for why that element of the flashing has been displaced and therefore, on the basis that there is no feasible possible alternative, it is necessary for us to conclude that that displacement was caused by one minor branch of one stem of the Leopard tree. The displacement itself is of a comparatively minor nature and there is no obvious damage or rotting to the element of the end of the bargeboard that was otherwise protected by that flashing. 24Nonetheless, we are satisfied that that does meet the jurisdictional prerequisite. We are not able to be satisfied that there is no risk of further damage arising from that and as a consequence, that in itself, warrants the pruning of that branch and that branch alone, so that there is no future possibility of interference with the applicants' property. 25As a consequence of all of that, we are satisfied that: * First, there is no basis to order removal of the trees. * Second, that there is no basis for ordering that the respondents meet the cost of replacement of the applicants' sewer pipe; and * The only order that is appropriate to make is that the single branch that is in the vicinity of the area of flashing displaced on the upper level balcony is to be pruned to the boundary of the properties. 26We also observe, in conclusion, that there is no demonstration of actual damage to the roof or the skylight of the applicants' property. There is nothing that would cause us to conclude that, consistent with what was determined in Yang v Scerri, there is any likelihood in the near future of such damage, so that the resulting orders of the Court are that 1.The application is granted in part; and 2.The respondents are to prune the branch in the vicinity of the displaced flashing at the southern end of the applicants' balcony to a point that is equal to the boundary between the two properties. Tim Moore Senior Commissioner David Galwey 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. Decision last updated: 27 November 2013