Land and Environment Court New South Wales Medium Neutral Citation: Say & anor v Antal [2016] NSWLEC 1493 Hearing dates: 27 October 2016 Date of orders: 27 October 2016 Decision date: 27 October 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; sewer Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSELEC 152 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: Virginia & Lesley Say (Applicants) Michael Antal (Respondent) Representation: Ms V Say (Litigant in person) Ms S Antal (Agent) File Number(s): 219235 of 2016 Judgment 1. COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of five trees growing on an adjoining property in Leumeah. 2. The applicants contend that roots from the trees have caused damage to the sewer system and although the pipes have been replaced, they may cause damage in the future. The applicants also maintain that the roots of the trees, by extracting water from the soil and causing subsequent soil shrinkage, have caused structural damage to the retained concrete surrounds of their dwelling. 3. The trees are five early mature Lillypillies planted as a group in the front garden of the respondent's property, relatively close to the dividing fence between the parties' properties and to the north of the applicants' sewer. The respondent's property is one allotment within a strata plan. The dwellings, including that of the applicants, are thought to have been constructed in or about the early to mid-1990s. 4. The applicants' sewer runs through the western portion of the property and beneath the trees to the north and then into the main. 5. In February 2016 the applicants' sewer blocked and CCTV photographs included in the application claim form show a cluster of fine roots somewhere in the PVC pipe; allegedly near the common boundary although the location of the blockages in the images is not recorded anywhere. 6. The tax invoice from the applicants' plumber indicates that two sections of sewer (PVC) were replaced, and it appears from the on-site hearing, two new inspection points were installed/ older ones replaced – one within the concrete surround outside the bathroom and the other in the lawn between the dwelling and the dividing fence. There has been some subsidence/ lack of backfill around the inspection point in the lawn. A section of concrete was replaced. 7. From information obtained during the hearing, it seems that the applicants approached the strata owners' corporation rather than the respondent. The strata removed a nearby Silky Oak from the common property and reimbursed the applicants for the replacement of the sewer. 8. The tax invoice indicates a workmanship warranty of 7 years. 9. Photographs in the application claim form, and verified on site, show a crack in the concrete surround extending from a drain outlet beneath a tap mounted near the corner of the dwelling, across the slab to the retained edge. I also observed other similar cracks well away from the trees but no cracking where expansion joints had been installed. 10. 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…". In Robson v Leischke [2008] NSELEC 152 at [176]-[189], Preston CJ determined amongst other things that a tree the subject of an application need only be a cause of the damage in order to engage the Court's jurisdiction. 3. On the basis of the photographic evidence in the application claim form, I am satisfied that roots from one or more of the trees probably contributed to the blockage of the sewer, however, there is no evidence to indicate how or where the roots penetrated the pipe. It is also possible that roots from other plants growing in the strata's common property along the western boundary of the applicants' land may also have grown into the pipes. 4. Therefore, on the basis of past damage, I am satisfied that the Court's jurisdiction is engaged. 5. However, the applicants' concerns go to future damage. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. In Robson v Leischke at [200] the 'near future' is considered in the terms of imminent/ real appreciable probability of irreparable damage. 6. In finding some probable involvement of the respondent's trees in the blockage of the sewer, it would have been open for me, under s 9(1) of the Trees Act, to consider an order for the replacement of the sewer. However, this has already occurred. Assuming the pipes have been correctly installed and sealed, there is no reason to assume that any further damage is likely to be caused to the sewer by any of the respondent's trees within the time frame considered by then Court. There is no justification for the removal of the trees on the basis of a hypothetical possibility that future damage may occur. 7. In regards to the cracking of the concrete slab, there is no evidence of the reactivity of the soils and the impact of tree roots on the slab. As stated above, there are other cracks in other parts of the concrete surround well away from the trees. How, when and on what the slab was installed is unknown. In the absence of any evidence, no orders will be made for any intervention with the trees on the basis of the cracked slab. 8. 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. 9. However, for the reasons discussed above, no orders will be made for any intervention with the trees at this stage. 10. The Orders of the Court are: 1. The application is dismissed. ________________________ Judy Fakes 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 October 2016