Fernandes v Vieira & anor [2017] NSWLEC 1092

Land and Environment Court New South Wales

Medium Neutral Citation: Fernandes v Vieira & anor [2017] NSWLEC 1092 Hearing dates: 24 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage, compensation, banana trees, PVC pipes Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Lynn Fernandes (Applicant) Antonio and Irene Vieira (Respondents) Representation: Applicant: Ms L Fernandes (Litigant in person) Respondents: Mr V Rajeev (Solicitor)

Solicitors: Respondents: Rudra Legal Corporation Pty Ltd File Number(s): 351981 of 2016

Judgment 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking compensation for damage to PVC "plumbing pipes" she alleges was caused by banana trees growing on the adjoining Hinchinbrook property.

2. The applicant is claiming reimbursement of $2000.00 for plumbing costs. She is also claiming other costs including the court filing fee. Dealing with these sundry costs first, Commissioners of the court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought by either party, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

3. Relevant to this matter, the key jurisdictional test is found in s 10(2)(a). 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, 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…".

2. The work was completed on 12 July 2016. The work carried out is described on a tax invoice dated 4 July 2016 states (punctuation added): Cut kerb & grass; excavate to side fence; supply and install new stormwater line to street; concrete up kerb; back fill and compact. Supply & install new floor seal in toilet room. Supply and install new garden tap Supply and install new plastic cistern 1. The banana plants were growing in the respondents' front garden bed, relatively close to the common boundary with the applicant. The replaced PVC stormwater pipe is within about 1m of the common boundary; as is the water meter as well as other services. The applicant's front yard is turfed.

2. The application claim form and additional material filed by the applicant includes a number of photographs, as well as complaints about barking dogs and the alleged spraying of a plant growth regulator onto the applicant's lawn. The Trees Act does not apply to either dogs or plant growth regulators. The photographs in Exhibit A include the location of the banana trees that were growing on the respondents' property but have since been removed, the old and new pipes, and the site of the pipes before and after the plumbing work. The banana plants closest to the boundary are quite small. Additional photographs in Exhibit B include photographs of what the applicant describes as a depression in the ground in the vicinity of the pipe; in oral evidence she stated that this depression is what alerted her to a problem with the pipe. The applicant relies on the photographs and the information supplied in the application claim form.

3. The respondents' solicitor submits there is no evidence that the banana trees caused any damage to the applicant's stormwater pipe and questioned whether the typically fibrous roots of these plants could cause damage to PVC pipes. He also contends that the applicant did not make a reasonable attempt to reach an agreement with his clients prior to taking the matter to court, as such, s 10(1)(a) is not met.

Findings 1. In Smith and Hannaford, Craig J discusses the obligation created by s 10(2) for the Court to be satisfied of the causal nexus between the tree the subject of an application and the damage claimed by an applicant.

2. In this matter there is no evidence, photographic or otherwise, to substantiate the applicant's claim that roots from the banana plants caused the alleged damage to the stormwater pipe. This includes the absence of any mention of roots in the plumber's tax invoices or any photographic or other evidence of roots extracted from the pipe. In addition, the tax invoice includes replacement of a number of items that are highly unlikely to have been damaged by banana roots. As s 10(2)(a) is not met, the Court has no jurisdiction to make any orders, in this matter, for any reimbursement of plumbing costs.

3. In regards to the submission about a reasonable effort, in Robson v Leischke [2008] NSWLEC 152 at [191]-[196] Preston CJ discusses the clause 'reasonable effort to reach an agreement'. Although this is in the context of s 10(1)(a) in Part 2, the wording is the same in s 14E(1)(a). At [194] in Robson, His Honour notes that the Trees Act does not specify any particular timeframe or means by which an applicant is to make a reasonable effort. He states in part: ….Hence, although it would be preferable for an applicant to make a reasonable effort with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.

1. I concur with His Honour's findings and find s 10(1)(a) sufficiently satisfied.

2. In any event, as the key jurisdictional test in s 10(2) is not met, the Orders of the Court must be: 1. The application is dismissed. _________ Judy Fakes 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 February 2017