Cleminson v Nussbaum & anor [2015] NSWLEC 1497

Land and Environment Court New South Wales

Medium Neutral Citation: Cleminson v Nussbaum & anor [2015] NSWLEC 1497 Hearing dates: 30 November 2015 Date of orders: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Possible future damage; insufficient evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Ms C Cleminson (Applicant) Ms R and Mr W Nussbaum (Respondents) Representation: Applicant: Ms Cleminson (Litigant in person) Respondents: Mr Nussbaum (Litigant in person) File Number(s): 20686 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Rose Bay against the owners of trees growing on an adjoining property. 2. The applicant is seeking orders to remove all trees and shrubs growing adjacent to the side passageway of her property and to kill all roots remaining in the ground, or in the alternative, for the relining of sewer pipes as indicated in a quote from Omega plumbing. 3. The trees the subject of the application are a row of clumping bamboo and a frangipani. There are other trees and shrubs growing along the common boundary however these do not form part of the application. 4. In her application claim form the applicant states: T1 [the bamboo] was planted less than a year ago, and we believe it is likely to cause damage to the D1 (earthenware sewerage pipes), as bamboo is an aggressive growing plant. It has penetrated the boundary fence and has appeared on our property. The passageway at [applicant's property] has been laid with reinforced concrete and if the pipes collapse or are damaged in any way due to the bamboo, then this will be a costly exercise to repair. 1. According to the respondents, the clumping bamboo was planted in March 2013. The frangipani is well-established. 2. The only supporting evidence provided by the applicant where roots are mentioned is a quote dated 29 May 2015 from Omega Service Solutions. The quote considers two options. To perform sectional relining of sewer pipe from stack to mains. 3 points where cracked clay pipe has occurred, tree roots are getting in. Being affected by neighbours tree roots. To perform downstream relining from stack work to mains. To reinforce existing pipe work in ground being affected from neighbours tree roots. 1. During the hearing the applicant stated that in August/September 2014 the junction/pit connection to the sewer main at the rear of her property was replaced at great expense. At that time the full length of the sewer was cleared. She said that some years before, a section of sewer pipe was rerouted and replaced by PVC. The remaining clay pipes run alongside the dwelling, beneath the side passageway that adjoins the respondents' property. 2. Apart from the clearing that took place in August/ September 2014, the applicant stated that the pipes were cleared again in May 2015 and the quote was a consequence of what they found. Although no mention of it is made in the quote, the applicant stated that CCTV was used and there was evidence of fine roots at three locations. However, there is no evidence by way of photographs or a more detailed report illustrating or recording the location of any root incursions nor any details as to the origin of the roots. The applicant contends that the only trees growing nearby are those on the respondents' property. The applicant assumes the fine roots allegedly seen in the footage to be from the frangipani but she remains concerned that the bamboo could cause damage in the future. Similarly, there is no evidence of any roots being found when the sewer was cleared in 2014. 3. In applications under part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. Injury is not pressed. 2. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 3. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. 4. On the basis of the scant material provided by the applicant, I am not satisfied that any of the tests in s 10(2)(a) are met. However, on the basis of the applicant's statements made on site in regards to past blockages, if I am wrong in this, there is still insufficient evidence on which to make orders. The making of Court orders requires certainty and proof of the nexus between a tree, the subject of an application, and the alleged damage. In this case that level of certainty has not been provided. 5. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence. 6. However, as a consequence of foregoing, the Orders of the Court are: 1. The application is dismissed. ____________________________ Judy Fakes Commissioner of the Court