Song v Hackney [2016] NSWLEC 1512

Land and Environment Court New South Wales

Medium Neutral Citation: Song v Hackney [2016] NSWLEC 1512 Hearing dates: 24 October 2016 Date of orders: 02 November 2016 Decision date: 02 November 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; sewer blockage; compensation; adequacy of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Olivia Yan Song (Applicant) Michelle Hackney (Respondent) Representation: Applicant: Ms V McWilliam (Barrister) Respondent: Mr D Williams (Solicitor)

Solicitors: Applicant: Juris Cor Legal Respondent: Whitehead Cooper Williams File Number(s): 199993 of 2016

Judgment 1. COMMISSIONER: The applicant, Ms Song, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two Liquidambar trees and the payment of $63,729.20 for losses arising from, or incidental to, damage to her property allegedly caused by the trees. The damage is said to be damage to the applicant's sewer pipes. Ms Song is also concerned that if the trees are not removed, then it is very likely that roots from the trees will infiltrate the pipes and cause them to burst again. 2. The trees, the subject of the application, are located on Ms Hackney's property close to the common boundary. Tree 1 is growing in the front garden; Tree 2 was, until September 2016, growing in the back garden approximately 10m to the east of the applicant's dwelling. In July 2016 the respondent obtained permission from The Hills Shire Council to remove Tree 2 (on the basis it had included bark between the stems); council refused permission to remove Tree 1 but permitted pruning of no more than 15% of the canopy. Tree 2 has been cut to about 1m above ground; I was informed that the stump was poisoned. 3. Apart from the two Liquidambars, there are a number of other trees and shrubs on the respondent's property including a large Cedrus deodara (Himalayan Cedar) in the front garden. There are also trees and shrubs on the applicant's property including a mature Juniperus chinensis (Chinese Juniper) close to the common boundary, sewer, and several metres to the southeast of Tree 1. There is also a Viburnum hedge along the applicant's front fence, parallel to the sewer main. 'Streetview' and 'Nearmap' images from 2014 included in the respondent's arborist's (Mr Mark Hartley) report (Exhibit 3) show there were a number of other trees and shrubs including a Jacaranda, semi-mature Norfolk Island Pine, and Oleanders in the applicant's front garden which have since been removed. 4. The applicant's sewer runs along the north-eastern side of her dwelling from southeast to northwest where it joins Sydney Water's sewer main which runs beneath the front gardens of the parties' properties. The respondent's property is the adjoining property to the north. A large diameter manhole providing access to the sewer main is located within the applicant's front garden, within about 2m of the base of Tree 1.