Pandey v Wallace [2017] NSWLEC 1664

Land and Environment Court New South Wales

Medium Neutral Citation: Pandey v Wallace [2017] NSWLEC 1664 Hearing dates: 22 November 2017 Date of orders: 22 November 2017 Decision date: 22 November 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [22] Catchwords: TREES [NEIGHBOURS] : Damage to property; risk of injury; sewer; sufficiency 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 Texts Cited: Nil Category: Principal judgment Parties: Rachna Pandey (Applicant) Lisa Wallace (Respondent) Representation: Applicant: Rachna Pandey (Litigant in person) Respondent: Lisa Wallace (Litigant in person) File Number(s): 2017/266373 Publication restriction: No

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two palm trees growing on the respondent's adjoining Ingleburn property. The orders are sought on the basis that the roots of the palms have caused, and will in the future cause, damage to the applicant's property and falling fronds could cause injury to anyone on her property. 2. The applicant is also seeking a number of other orders including: reimbursement of 50% of the cost of the replacement of a section of concrete path and replacement of sections of two pipes – a sewer pipe and stormwater pipe which the applicant alleges were damaged by the palm trees; and replacement of retaining structures at the base of the dividing fence. A number of other orders sought by the applicant cannot be considered as they relate to trees not growing on the respondent's land or refer to unspecified potential future damage or injury. If issues arise from other trees, or the circumstances change and there is new damage or injury arising from the palm trees, a new application can be made. 3. The respondent does not wish to remove the palm trees which were present when she purchased her property in 1996. She has offered to remove dead fronds before they fall and to replace the retaining structures (boards) at the base of the fence. The respondent disputes the palm roots being the cause of the damage to the pipes and notes the age of the terracotta pipes as being the most likely reason for their failure. 4. The palms are a Bangalow and a Queen/ Cocos palm growing on the respondent's property close to the common side boundary fence. 5. 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. 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] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court's jurisdiction. 2. 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.