Difford v Davidson [2018] NSWLEC 1612

Land and Environment Court New South Wales

Medium Neutral Citation: Difford v Davidson [2018] NSWLEC 1612 Hearing dates: 20 November 2018 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – terracotta pipes – reasonable effort to reach agreement Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Thelma Difford (Applicant) Jason Davidson (Respondent) Representation: Thelma Difford, litigant in person (Applicant) Jason Davidson, litigant in person (Respondent) File Number(s): 2018/243585 Publication restriction: No

Judgment

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

Background 1. Several years ago Mr Davidson ('the applicant') planted a row of trees along the side boundary of his Abermain property to provide privacy between neighbouring dwellings. 2. Since then his neighbour Mrs Difford ('the respondent') has engaged a plumber on several occasions to unblock her sewer pipe, which runs along close to this common boundary. 3. Mrs Difford has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for the trees to be removed or for a root barrier to be installed to prevent roots growing onto her property. She also seeks compensation for plumbers' costs of $900.

The trees and property 1. I viewed the situation at the onsite hearing. Ten lilly pillies and several other trees grow in a row on Mr Davidson's property close to the common boundary. They are approximately three metres tall. 2. On her property, Mrs Difford has uncovered one root growing from a lilly pilly towards her sewer pipe. She provided invoices showing a plumber has removed tree roots from her sewer pipe on several occasions. 3. Mrs Difford submits that Water Corporation guidelines recommend lilly pillies be planted no closer than 10-12 metres from water pipes. 4. Council provided written submissions explaining that, due to their height and proximity to buildings, a permit would not be required for removing these trees. Council's vegetation officer expressed a view that "… it is reasonably foreseeable that roots may impact pipe work adjacent." 5. Mrs Difford explained that she should not be expected to continually bear the costs of repairing her sewer pipe. 6. Mr Davidson submitted that roots were unlikely to cause initial damage to pipes, but may grow into cracks in joints of old terracotta pipes. He says a palm tree has been removed from Mrs Difford's garden.