Just v Nel

Robson v Leischke [2008] NSWLEC 152 CASES CITED: Immarrata v Mourikis [2007] NSWLEC 601 Dooley v Newell [2007] NSWLEC 715 Clune v Falconer [2008] NSWLEC 1458

APPLICANT Allan Just [litigant in person]

LEGAL REPRESENTATIVES: RESPONDENT Carel Nel [litigant in person] Estelle Nel [litigant in person]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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 (the Act) made by the owner of a property in Warandoo Street Hornsby against the owners of two Camphor Laurel stumps located on an adjoining property. 2 The applicant is seeking the removal of the stumps and their root systems and the replacement of the sewer line that runs along the rear northern boundary of his property. 3 These orders are sought as the applicant contends that the roots of both trees have caused or could cause damage to his sewer pipe by wrapping around the pipe or by penetrating it. The applicant states that the sewer pipe cannot be replaced without removing the roots. 4 The applicant is also concerned that if left in the ground, the stumps and roots will encourage termites that could then damage his weatherboard house. 5 He also contends that the leaving of one of the trees (tree 1) as a tall stump has led to the tree becoming "an 'unbalanced' tree causing movement in the root system resulting in damage to a landscape/paved area…, ground movement around the roots of both of the trees, and is probably the cause of cracking of the internal walls.." of his house. 6 Whilst the applicant did not make an application with respect to injury, he states in his application that "this imbalance is expected to eventually cause the stump to fall over with the likelihood of further damage. When it does fall over it will be a safety problem. The root structure of Camphor Laurel No. 1 is so large and spread that when it does fall over it has the potential to take with it the dwelling…and any persons inside it at the time". 7 The trees are the stumps of two Camphor Laurels that were removed by the respondents some 4 years ago. 8 In Robson v Leischke [2008] NSWLEC 152 at para 147, Preston CJ makes it clear that: "The concept of a "tree" is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land."

9 They are located on the boundary between the two properties. Section 4(3) of the Act states that: "For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land".

10 That is, more than 50% of the base of the tree, or stump in this case, must be on the respondent's property. In this matter, a survey plan produced by a registered surveyor demonstrates that this is the case and thus the Court has the jurisdiction to hear the matter. 11 Starting with the smaller of the stumps, stump 2, this is located upslope and to the east of the applicant's pool. It was originally cut to about 500 mm above ground and then poisoned. At the time of the on-site hearing, it was clearly dead and covered in the fruiting bodies of a saprophytic fungus (i.e. a fungus that feeds off dead tissue). The roots were dead although they retained the camphor smell that is a characteristic of the species. 12 On the respondents' side, the stump has been reduced to ground level to enable the erection of a dividing fence. 13 The applicant had removed an area of lawn to expose a section of the root system. This included a part of the root system in close proximity to a section of the earthenware sewer pipe that runs down the northern side of his property. When I asked the applicant if the pipe was damaged he said that it was not. 14 Under s 10(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 likely to cause injury to any person. These tests must be applied to each tree stump. 15 With respect to stump 2, there is no evidence to suggest that it has caused damage to the applicant's sewer pipe, and, as it is dead, it will not cause damage in the near future. The applicant stated that as the roots decay, this will cause subsidence and then may create an uneven surface and this could be dangerous. In this matter, the applicant has excavated the area and should be aware of the risks of not reinstating the levels. Therefore the risk of injury posed by the stump is negligible and unlikely to cause injury to any person. 16 In the matter of possible termite damage, in Robson v Leischke [2008] NSWLEC 152 at 189, Preston CJ states that " the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it as habitat." 17 Similar findings have been made in Immarrata v Mourikis [2007] NSWLEC 601, Dooley v Newell [2007] NSWLEC 715 and Clune v Falconer [2008] NSWLEC 1458. This is relevant, in this matter, to the issue of termites. Termites are not trees and therefore the Court has no jurisdiction to make orders for the interference with a tree based on possible termite damage. 18 As none of the tests in s 10(2) are satisfied for stump 2, this element of the application is dismissed.

19 Stump 1, closest to the applicant's house, has been cut to a height of about 2.5 m above ground. According to the respondents it was left at this height as it formed part of a fence between the two properties. It was poisoned at the time it was cut but it has since produced both root suckers (on the applicant's side) and epicormic shoots off the trunk (on the respondents' side). 20 The epicormic shoots arise from about 1m above ground on the respondents' side and are about 3-4m tall. According to the respondents, they let the shoots grow because of the applicant's concerns about loss of privacy after the respondents rebuilt their house. They also stated that they were keen to remove the stumps in order for a new dividing fence to be constructed however, they stated that the applicant was not interested in extending the fence to that point. 21 There are several root suckers less than 1m high on the applicant's side. Also on the applicant's side is evidence of a large pruning wound. The applicant stated that he removed the branches, before the tree was substantially removed, in order to limit the growth of the roots on his side. The applicant has also used an axe to chop through a portion of the base of the tree. 22 At the base of tree 1 is a paved area, the paving being comprised of large (600 mm x 600 mm or so) concrete unit pavers. These are displaced and several are cracked. The applicant contends that these were flat until about 6 months ago. He contends that the damage has been caused by the invigorating effect the suckering of the tree has had on the roots. 23 The applicant purchased his property about 11 years ago and the pavers were in existence. The house itself is some 50 years old however, it is unlikely that the pavers are of the same vintage. It is also noted that the applicant's property is tenanted and not frequently inspected by the applicant. 24 The applicant contends that the sewer beneath the paving is broken and that the tree roots caused this damage. 25 He said he was alerted to the problem because of bad smell and when he dug up the area he found the roots had grown around the pipe and had damaged it. There was no photographic evidence of this in the application although there were photographs of other sections of the roots of stump 2. It was at this stage when he started chopping through the roots. 26 At the on-site hearing, the applicant attempted to excavate the area beneath the paving to show the damage. This was unsuccessful and no damage could be demonstrated. 27 The applicant included a quote in his application for the removal and replacement of the sewer. However when questioned about the plumber's visit, it transpired that no work was done by the plumber and only a cursory investigation was made, solely, it seems, for the purpose of providing a quote. When questioned specifically about whether the pipe was blocked and needed clearing, the applicant said that it was not. Asked if he notified the respondents of his concerns about the sewer when he first noticed the problem, he said he did not. 28 The respondents stated that the first they knew of the alleged problem with the sewer was when they received the application. They also stated that they had not heard of any problems with the sewer system from any of the tenants who had resided in the applicant's house. 29 As there is no evidence to show that the roots from tree 1 or tree 2 have damaged the sewer, nor are they likely to in the near future, the application to replace the sewer is dismissed. 30 The applicant also contends that a fine vertical crack in the corner of a room on the northern side of his house, and in a corner of the cornice above this crack, is due to the roots of tree 1. 31 He stated that he first became aware of this crack when he inspected the house in February this year when the previous tenants vacated the property. He did not notify the respondents of this crack. The respondents stated that the applicant had solar panels for a hot water service installed on the roof, in late 2009, directly above the room with the crack. The applicant contends that the problem has been caused by the roots and not by the installation of the solar panels. 32 When asked what proof the applicant had that the tree roots had caused the crack, he was unable to demonstrate the nexus between the tree and the crack. 33 With respect to applicant's fear that the eventual failure and falling of stump 1 will cause catastrophic damage to his house and anyone in it, is an unfounded fear that could not, in any practical sense, occur. 34 Therefore on the facts before me, I am not satisfied that the tests under s 10(2) are met for tree stump 1 and the application to remove this stump is refused. 35 However, if I am wrong on the jurisdictional facts with respect to the pavers, taking into account their age, the nature of the substrate on which they are laid and, in particular, the recent activities associated with investigating the sewer issue, on the basis of the discretionary powers enabled by s 9 of the Act, I am of the opinion that the damage is not sufficient to warrant an Order of the Court. With respect to the root suckers, it is highly likely that the more recent mechanical disturbance to the roots, by the applicant, has stimulated their growth. 36 In conclusion, the application, in its entirety, is dismissed.

J Fakes Commissioner of the Court

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