Tasdemir v Fahey [2009] NSWLEC 1418

Land and Environment Court of New South Wales

CITATION : Tasdemir v Fahey [2009] NSWLEC 1418

APPLICANT Oktay Tasdemir PARTIES : RESPONDENT Murray Fahey

FILE NUMBER(S) : 20703 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Removal of tree and Damage to property.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 11 December 2009

EX TEMPORE JUDGMENT DATE : 11 December 2009

APPLICANT Oktay Tasdemir

LEGAL REPRESENTATIVES:

RESPONDENT Murray Fahey

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

11 December 2009

20703 of 2009 Oktay Tasdemir v Murray Fahey

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Oktay Tasdemir of 57 Little Mount Street Pyrmont against the owner of an avocado tree growing at the rear of 59 Little Mount Street. The owner of that property is Mr Murray Fahey.

2 The applicant is seeking the removal of the tree as he contends that the roots from the tree have blocked and damaged his sewer and storm water pipes and the trunk has damaged the metal dividing fence.

3 In his application, Mr Tasdemir is also seeking compensation of a total of $8,718 for quotes and costs relating to the removal and replacement of the sewer and storm water pipes, replacement of the fence, plumbing costs associated with unblocking the sewer, and the cost of an arborist's report.

4 Since the directions hearing, the applicant and the respondent have negotiated a settlement of the dispute with respect to compensation and that element of the application has been withdrawn.

5 The tree was inspected from both properties. It is a mature tree in healthy condition. According to Mr Fahey, the tree was well established when he purchased his property in 1989. It consists of three stems, the largest being approximately 450 mm in diameter at breast height. Two smaller stems arising from the base of the largest stem are about 180 and 150 mm in diameter. The main stem is growing against the metal fence and has caused some minor buckling. The base of the tree is approximately 200 mm from the base of the dividing fence.

6 The applicant produced a letter from a plumber dated 26 May 2009 in which it was stated, "the storm water and sewer pipes are damaged and dysfunctional due to substantial tree growth in and around the sewer and storm water lines". The plumber states that both the storm water and sewer pipes will have to be replaced and reconstructed. The sewer pipes were cleared at that time but have been blocked and cleared on two occasions since. The applicant stated the storm water is completely blocked and the rear of the property floods in storms.

7 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

8 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (e) The tree contributes to the scenic value of the land on which it is growing. (f) The tree has some value to public amenity as it can be seen from the rear gardens of the surrounding small terrace houses and provides shade to the respondent's and applicant's courtyards. (h)(i) The age and nature of the pipes will have contributed to the ingress of roots from nearby trees. No other woody plants are located in proximity to the pipes. The other plants in the respondent's property are palms and the evidence provided clearly indicated woody roots, not palm roots. 9 The respondent does not dispute the evidence and accepts that the roots from the avocado tree have caused the damage to the sewer and storm water pipes. Mr Fahey also accepts the recommendation from the plumber regarding the need to replace those pipes.

10 The rear of the applicant's property is a small paved courtyard. The sewer pipe is within 500 mm of the boundary fence and runs parallel to the fence. The storm water pipe is within 1 m of the tree. In my opinion, given the proximity of the tree to the pipes, the action of removing and replacing those pipes will incur damage to structural roots, which would then compromise the structural integrity of the tree.

11 On the evidence provided, I conclude that two of the tests under s 10(2) are met and the jurisdiction is enlivened. The roots of the tree have caused damage to the applicant's storm water and sewer pipes and will continue to do so in the near future.

12 The Orders of the Court are:

1. The application to remove the tree is upheld. 2. The respondent is to engage and pay for an AQF level 3 arborist with the appropriate insurances to remove the tree to ground level and to grind the stump to at least 200 mm below grade. 3. The work is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry. 4. This work is to be completed within 3 months of the date of these orders.

___________________ J 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.