Horwood v Pearson & anor [2015] NSWLEC 1010

Land and Environment Court New South Wales

Medium Neutral Citation: Horwood v Pearson & anor [2015] NSWLEC 1010 Hearing dates: 29 January 2015 Decision date: 29 January 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is upheld in part. (2) The respondents are to pay the applicant the sum of $880 by cheque sent by registered post within 14 days of the date of these orders. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to sewer pipe; was the respondent denied opportunity to resolve the issue; apportionment; application upheld in part; orders for compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Colling v Wilson [2009] NSWLEC 106 Hill v Dance [2007] NSWLEC 642 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Category: Principal judgment Parties: Thelma Horwood (Applicant)

Tony Pearson (First Respondent) Kelly Pearson (Second Respondent) Representation: Thelma Horwood, litigant in person (Applicant)

Tony Pearson, litigant in person (Respondent) File Number(s): 20898 of 2014

Judgment

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

Background 1. Mrs Horwood ("the applicant") called a plumber to her Greystanes property in July 2014 to attend to a blocked sewer pipe. The plumber found roots in the terracotta pipe, a section of which he replaced with new PVC pipe. Mrs Horwood later informed her neighbours Mr and Mrs Pearson ("the respondents") that roots were from one of their trees. She has applied to the Land and Environment Court seeking orders for compensation for the cost of the plumbing works. The application is made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act"). The compensation Mrs Horwood proposes includes the $5,000 plumber's bill, costs of $281 associated with making the application, and $200 for stress. The Act does not provide jurisdiction to order compensation for stress. Commissioners do not have the power to award costs associated with making an application. If Mrs Horwood wishes to pursue that she must lodge a Notice of Motion for that issue to be heard by a Judge or the Registrar of the Court. 2. The Pearsons say they were denied the opportunity to deal with the issue as they were not informed until well after the plumbing works occurred. They did not have an opportunity to obtain quotes for the works. They say that the costs incurred by Mrs Horwood were higher than quotes they have since obtained. Furthermore they say there is no evidence that roots from their tree caused any damage. Nevertheless they had the tree removed as soon as they were made aware of the issue. 3. The jurisdictional framework of the Trees Act requires that the Court be satisfied of certain tests before making orders. In this case I must be satisfied that the respondents' tree caused damage to the applicant's property. There is then a range of matters that must be considered before the Court makes orders, if any, which it determines to be appropriate. The principal questions are: 1. Did the Pearsons' tree cause damage to Mrs Horwood's sewer pipe? 2. What actions did the parties take, or not take, to address the problem? 3. What amount of compensation, if any, should the respondents pay to the applicant?