Land and Environment Court New South Wales

• Medium Neutral Citation: Moutia v Jarrett [2013] NSWLEC 1129
• Hearing dates: 19 July 2013
• Decision date: 19 July 2013
• Jurisdiction: Class 2
• Before: Fakes C; Galwey AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; compensation for sewer repairs; period over which respondent owned the property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Cincotta v Huang & ors [2011] NSWLEC 1086; Hinde v Anderson & anor [2009] NSWLEC 1148; McCallum v Riodan & anor [2011] NSWLEC 1009; Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Thornberry & anor v Packer & anor [2010] NSWLEC 1069; Yang v Scerri [2007] NSWLEC 592; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Mr L Moutia (Applicant); Mr A Jarrett (Respondent)
• Representation: Applicant: Mr L Moutia (Litigant in person); Respondent: Mr A Jarrett (Litigant in person)
• File Number(s): 20270 of 2013

Judgment

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

1 COMMISSIONERS: The applicant in these proceedings is seeking orders for the removal of a tree growing on a neighbouring property as well as compensation for repairs to his sewer that he contends was damaged by the tree's roots. The amount claimed for plumbing costs is $4617.50.

2 The applicant also seeks reimbursement for an arborist's report. Commissioners do not have the jurisdiction to award such costs. Should the applicant wish to pursue this, a Notice of Motion will have to be heard by a Judge or Registrar of the Court.

3 The respondent wishes to retain the tree and disputes his liability for the repairs to the sewer.

4 The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

The tree

5 The tree is located in the south-eastern corner of the respondent's property. The applicant's arborist, Mr James McArdle identifies the tree as Cratageus viridis 'Winter King' [Hawthorn]. On site, we identified the tree as Acer negundo (Box Elder). A Broadleaf Privet is growing at its base. We understand the application applies only to the Box Elder. (Mr McArdle identifies the Privet as Lagunaria sp [Norfolk Island Hibiscus]).

6 The Mcardle report identifies some potential structural defects such as included stems and a cavity.

Relevant background

7 The applicant has lived on his property for over 30 years. The dwelling is thought to be at least 50 years old; the sewer pipes are thought to be the original pipes. The respondent purchased his property in September 2012 but does not reside there; the dwelling is unoccupied.

8 In late November 2012, the applicant states that he observed seepage that was clearly sewage in the north-western corner of his property in the vicinity of the junction of his sewer with the main.

9 The applicant contends that he wrote to "The owner of property..." at the respondent's address advising that he would like to discuss the matter of a tree at the rear of the respondent's property and damage to his sewer. The letter dated 3 December 2012 states that the applicant had CCTV footage and a plumber's report. This applicant says he placed this letter under the respondent's front door.

10 Apart from writing the letter, the applicant stated that he visited the respondent's property on several occasions but no-one was home.

11 The respondent stated that he did not receive the letter.

12 After he failed to hear back from the respondent, the applicant engaged a plumber to carry out what he describes as emergency repairs to the sewer.

13 Prior to the replacement of the pipes but after the area around the pipes had been excavated, the applicant engaged Mr McArdle to prepare a report. The report indicates that he inspected the tree and what he describes as "the drainage pit". It is not clear from the report as to whether he inspected the tree from the respondent's property. The inspection was carried out on 6 December 2012 however the report is dated 15 January 2012.

14 Mr McArdle writes: The results conclude that the trees [sic] roots are positively identified as encroaching into Mr Jo Moutia's property and drainage lines are affected". There is no indication as to how the roots were identified or whether this simply indicates that tree roots were found on the applicant's property.

15 The McArdle report includes photographs of the tree and a pit. However, the photographs are of such poor quality [even in the original] it is difficult to discern any details, particularly any evidence of direct interaction between roots and the pipe. While one photograph (Plate 9) circles various elements in the image, including a join in the ceramic pipe, the photograph is too dark and unclear to be of any assistance. The text of the report fails to identify the asserted impact of the roots on the 'drainage'/sewer pipes.

16 The plumbing works were carried out on or about 14 December 2012. The plumber's report stated that the sewer pipe was "crushed and broken due to tree roots". The plumber carried out the following work: installed new PVC pipe work onto the Water Board's junction and covered join with patch liner; renewed 150mm boundary shaft with new PVC pipe work to ground level; replaced 1m of clay pipe upstream of boundary shaft with PVC; and installed 1 x 1.5 m patch liner upstream of new PVC.

17 In January 2013, the applicant saw the respondent working in his garden and raised the matter of the tree and the sewer with him.

18 The following day, the respondent offered to remove the tree at the applicant's expense and rejected the demand for the payment of any plumbing costs. The applicant rejected this proposal and the application was subsequently lodged with the Court.

Jurisdiction

19 Section 7 requires that the tree in question be situated on adjoining land. In this case a corner post connects the properties; this is sufficient to be considered as 'adjoining' land.

20 In applications under Part 2 of the Act, the key jurisdictional test is satisfaction of any element of s 10(2).

21 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned 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.

22 While s 10(2) is the key test, the respondent contends that the applicant has not made a reasonable effort to reach an agreement, that is, s 10(1)(a) is not satisfied.

23 This provision of the Act requires that an attempt must have occurred prior to the making of an order as a result of a hearing. While it is desirable that some discussion occur before the commencement of proceedings, it is not mandated - see Robson v Leischke [2008] NSWLEC 152 at [191] - [196].

Findings and consideration

24 Having noted many basic flaws in the McArdle report, we consider it can be given very little, if any, weight in our determination. However, with the expertise we bring to the Court we find that given the proximity of the tree to the sewer, the nature of the pipes, and the comments in the plumber's report, the roots from the Box Elder have most likely contributed to the damage to the applicant's sewer.

25 Therefore as one element of s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 is engaged. Section 9 of the Act enable the Court to make any orders it thinks fit; this requires consideration of relevant matters in s 12.

26 The most relevant matter is s 12(h) - actions of the parties and factors other than the tree. As previously stated, the sewer pipes are ceramic and are likely to be the original pipes. It is generally accepted that the often imperfect joints between sections of ceramic pipes, particularly at junctions and elbows, are susceptible to root ingress.

27 We also note that the respondent owned the property for only two months or so before the applicant noticed the seepage. We agree with the respondent that the damage to the pipes, particularly the crushing of the pipes as noted by the plumber, would take some time to occur, much longer than two months. Therefore, the vast majority of the damage occurred prior to the respondent's ownership of his property and therefore the tree.

28 We agree with the respondent that it would be unreasonable for him to have to contribute anything towards the cost of the applicant's plumbing costs.

29 As noted in previous judgments, an application for compensation for damage to property can only be made against the owner of the tree at the time the damage occurred - see Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5]. If a property has changed hands over the period which the damage is said to have occurred, an applicant may make an application against the current owner but the former owner may be joined in the proceedings - see Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 and Cincotta v Huang & ors [2011] NSWLEC 1086. The applicant has not sought to join the previous owner of the property.

30 The applicant is concerned that future damage to the sewer may arise and he therefore seeks the removal of the tree.

31 In regards to "the near future" as given in s 10(2), 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; a timeframe we consider appropriate in this matter.

32 Given the nature of the repairs described in paragraph [16] of this judgement, we consider it unlikely that damage to the pipes, as a consequence of the Box Elder, will occur in this time frame. Therefore we have no basis upon which to order the removal of the tree.

33 While the McArdle report identifies some defects in the tree, we consider that the tree is unlikely to cause injury to any person in the foreseeable future.

34 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

Orders

35 On the basis of the evidence before us and after considering the circumstances of the matter, the Orders of the Court are:

(1) The application is dismissed.

_________________________ _________________________

Judy Fakes David Galwey

Commissioner of the Court Acting Commissioner of the Court

Decision last updated: 19 July 2013