Land and Environment Court New South Wales

• Medium Neutral Citation: Reeve v Evans & anor [2014] NSWLEC 1196
• Hearing dates: 21 July 2014
• Decision date: 19 September 2014
• Jurisdiction: Class 2
• Before: Galwey AC; Durland AC

Decision

The application is dismissed.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; the Court cannot be satisfied that trees have caused damage; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Andrew Reeve (Applicant); Mark Evans (First Respondent); Yvette Evans (Second Respondent)
• Representation: Mr A Isaacs (Applicant); Mr T Vernier (Respondent); MCW Lawyers (Applicant); HWL Ebsworth Lawyers (Respondent)
• File Number(s): 20183 of 2014

Judgment

The application

1 Mr Reeve ("the applicant") owns and resides at a residential property in McGraths Hill in Sydney's outer north-western suburbs. Houses and gardens are well established in the neighbourhood. His front garden slopes gently down to the street, with a concrete driveway at one side. Not far from the driveway, in the neighbouring front garden, is a row of eight palm trees planted close to and along the common boundary.

2 Mr Reeve has replaced damaged stormwater pipes on his property. He alleges roots from the neighbouring palm trees caused the damage. He also claims palm roots have damaged his driveway. He has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for the palms to be removed and for compensation for the damage he says they have caused.

3 Mr and Mrs Evans ("the respondents") own the neighbouring property where the eight palms grow. They dispute that roots have damaged pipes and the driveway. They say there are other causes of the damage.

4 Within the framework of the Trees Act, the Court can make orders to remedy, restrain or prevent damage. This includes orders such as those being sought for compensation and tree removal. Before making orders the Court must, firstly, be satisfied that the trees concerned have caused, are causing or are likely in the near future to cause damage to the applicant's property. Secondly, the Court must consider a range of discretionary matters at s 12 of the Trees Act.

Evidence and statements

5 As is often the situation in matters involving tree root damage, the Court relies on evidence provided by the parties to identify the cause of damage. In this case Mr Reeve relies on a report by Paul Clark of Clark Engineering Consultants; video footage taken from a camera within his stormwater pipes; and many photographs. He also relies on various quotes and invoices for repair works, and on a signed statement from individuals who assisted with some repair works. A further report by Mr Clark and a report by Stephen McLoughlin, arborist, were filed later than directed and will not be considered.

6 Mr and Mrs Evans rely on an arboricultural report by Paul Mabbott; a report by Paul Davis, Structural Engineer; a report by plumber Shaun Boland; various photos and affidavits; and video footage taken from a camera within Mr Reeve's stormwater pipes.

7 It is apparent from much of the material that there is a history of disputes between the neighbours over issues including but ranging beyond the palm trees. Material that we regard as irrelevant to the decision is not considered in this judgment.

8 Some of the "evidence" is less than reliable and is given the weight it obviously deserves. For instance, a signed statement by Messrs Northwood and Mr Newcombe is at page 36 of Mr Reeve's Tree Dispute Claim Details form (Exhibit B). The three men apparently assisted with works when a pipe was being repaired on Mr Reeve's property. The statement describes some of the damage and even makes recommendations based on what the tree roots will do in future. When Messrs Northwood (father and son) were questioned, it became apparent that they had not written the statement and they do not work professionally in any field relevant to the issue. In fact, Mr Reeve had written the statement and got them to sign it. The younger Mr Northwood did not know which pipe was being referred to and was unsure if a pipe he had seen containing roots was a stormwater pipe or a drainage pipe.

The trees

9 Eight Cocos Palms (Syagrus romanzoffiana) are planted in a row on the Evans' property less than a metre from the common boundary with the Reeve property. They are up to 7 metres tall. The trees were on the property when the respondents purchased it in 2011.

Damage to the stormwater pipe

10 Mr Reeve has replaced the section of his stormwater pipe from a junction near the eastern corner of his house, at the rear of the row of palms, to the outlet at the street. In doing this he changed the location of the front section nearest the street from the western side of his driveway to the eastern side, near the trees.

11 To demonstrate that palm roots damaged his stormwater pipe, Mr Reeve relies on photographs taken before and during the works. Some of these show the proliferation of small roots in the soil during excavation (pages 17 to 26 of Exhibit B). He relies particularly on photographs taken within the pipe, which he says show a large kink in the pipe caused by palm roots growing against it (page 12 of Exhibit B) and palm roots within the pipe (pages 14 and 15).

12 Mr Reeve says the damaged stormwater pipe dates from 1989 and was made of ribbed PVC.

13 Mr Reeve relies on the "eyewitness evidence" of the Northwoods, who helped him with the works. We found their evidence somewhat unreliable.

14 Mr Reeve says the pipe blockage caused by the roots led to flooding at the back of his house.

15 The Evans say that there are no photos showing roots in Mr Reeve's stormwater pipe.

16 The Evans say the flooding at the back of Mr Reeve's dwelling was caused by poor work being done in the past, not by tree roots.

17 Both parties relied on video taken within Mr Reeve's pipes, and on photographs from that footage. Mr Reeve says photographs (in Exhibit B) show a section of the pipe damaged by tree roots, and roots within the pipe.

18 Mr Boland, plumber, says that the kink in the pipe is unlikely to have been caused by roots. He says the kink appears to be a result of poor work when the pipe was installed. He says suitable backfill such as bluestone was not put around the pipe, and that in such cases machinery carrying out backfilling works often causes kinks in pipes. He says a lump of concrete can be seen in the pipe in Mr Reeve's photographs, but not tree roots. Mr Boland says the pipe that was replaced was left in place and was not capped. He says other footage shows the pipe that was on the other side of Mr Reeve's driveway was blocked with roots from other trees. He says footage that shows water sitting in pipes indicates the pipes were not installed properly. In Mr Boland's experience, PVC pipes are not damaged by roots, especially palm roots.

19 Bringing our own arboricultural expertise to the matter, we are satisfied that roots in the soil between the driveway and the palms are from the palms. The proliferation of roots is to be expected this close to the palms.

20 There is no photograph of a large root or mass of roots against the outside of the pipe where Mr Reeve says root growth has caused a large kink. We are not satisfied that the kink is caused by tree roots. Mr Boland's suggestion that the pipe was damaged through other means, such as during its installation, seems more plausible. There was no bluestone or other aggregate placed around the pipe.

21 Despite the extensive range of photos taken on the day that the pipe was repaired, it seems surprising that, if there were roots inside the pipe, there is not one photo showing this.

22 Mr Reeve provided a tax invoice from Martech Plumbing dated 22/12/2010 for clearing roots from his pipes. The invoice states: "Callout to unblock stormwater line with water jetter. Remove a mass of tree roots which was blocking half the house stormwater system. Investigate stormwater blockage on remaining part of house. Found stormwater not connected to a stormwater system." Mr Reeve, or an unknown person, has conveniently placed a sticker concealing the words "not connected".

23 Having considered all the evidence provided by Mr Reeve, we find some of it less than convincing and, given the amount of evidence he has presented we are concerned at the absence of any evidence that would demonstrate his claim that palm roots caused the damage. We are not satisfied, to the extent required by s 10(2) of the Trees Act, that palm roots have caused damage to his stormwater pipe. Therefore the Court's jurisdiction is not engaged with regard to the stormwater pipe.

24 Even if we accept the statements of those that assisted with the works, and accept that roots were in the pipe, we cannot be satisfied as to the original cause of damage to the pipe that allowed roots to grow into it and block it. While it may be possible, it appears unlikely that roots caused the initial damage. Therefore, if roots caused further damage once they were in the pipes, thereby engaging the Court's jurisdiction at s 10(2)(a), after considering the discretionary matters at s 12 we would not make any orders for compensation or tree removal. In particular at s 12(h)(i) we would consider that there are other earlier causes of damage that allowed the root damage to occur. The Evans cannot be held responsible for this.

Damage to the driveway

25 The driveway dates from perhaps 1989. It is a concrete driveway that originally had a "pebblecrete" finish. In 2002 it was resurfaced. The applicant says he noticed damage from 2010 onwards, that damage being cracking and lifting of the surface. One such crack runs right across the driveway. The applicant says the driveway had no damage at the time it was resurfaced.

26 Mr Clark's report of 4 June 2014 comprises 19 pages: 3 pages of text, a 4-page Curriculum Vitae and a 12-page appendix containing photos. Section 3 of the report addresses the driveway.

3. Damage to driveway

3.1 The damage to the driveway as at the date of this report is shown on photos Nos. 3-5 in Appendix 2.

3.2 The damage as at 2010 is shown on Photo No. 6 in Appendix 2.

3.3 Comparison of the two sets of photos mentioned in 3.1 and 3.2 above shows that the damage to the driveway has all occurred since 2010.

3.4 The driveway was constructed with the building in 1989. The stenciled [sic] coating was applied to the existing driveway in approximately 2003.

27 In Section 5, headed "Analysis", Mr Clark gives his reasoning for attributing the cause of damage to the neighbouring palms. He says the damage is consistent with the effects of tree roots, but does not explain how.

5.1 The cracking and distortion of the driveway to the subject property is consistent with the effects of tree roots growing under the slab. As tree roots grow and expand, they disrupt the soil matrix around them. Such disruption is frequently the cause of lifted slabs, distorted pavements and structural damage to buildings.

5.2 The only trees in close proximity to the subject driveway are the trees located on the adjacent property, No. 23 Ivy Avenue.

5.3 As stated above, the damage to the driveway has only occurred since 2010. During that time there have not been any changes to the driveway, apart from the application of the stencil coating. There have been no changes to the usage of the driveway. During the time in question however, the trees have continued to grow.

5.4 The south-western half of the driveway to the adjacent property, No. 23 Ivy Avenue, being the half of the driveway closest to No. 25 Ivy Avenue, was excavated and reconstructed between approximately 1998 and 1999. This part of the driveway is also the closest to the trees mentioned above. The remaining half of the driveway to No. 23 Ivy Avenue, the north-eastern half, has significant cracks, comparable with the cracks in the driveway to No. 25 Ivy Avenue.

5.5 In the absence of any evidence of any other agent in the damage to the driveway, it is reasonable to conclude that the damage has been caused by the roots of the trees located in the adjacent property, No. 23 Ivy Avenue.

28 Mr Clark has relayed information provided by others, and made comments of a general nature, but has undertaken no investigations of his own.

29 The respondents dispute that roots from their palms have damaged the driveway. The Evans say that if roots have damaged the driveway, those roots might be from other trees in the vicinity, such as those of a large Eucalypt in Mr Reeve's front garden.

30 Mr Davis concludes, after more detailed reasoning, that the driveway damage is more likely to have resulted from concrete shrinkage and other factors. He pointed out that a thinner concrete slab that forms a path and is closer to the palms is not cracked.

31 Despite the time available to the applicant, there has been no investigation beneath the driveway to determine the extent of root growth. No roots have been collected from beneath the driveway for identification. Mr Clark did not take levels of the driveway to show where it has moved. In short, there is insufficient evidence for us to be satisfied that roots of the palms have damaged the driveway. Where conclusions cannot be made from mere observation, the persuasive burden lies with the applicant. Mr Clark's evidence does not demonstrate that palm roots have caused damage. The reports of Mr Davis and Mr Mabbott raise sufficient doubt that palm roots are the cause of driveway damage. Investigations that could have been carried out by the applicant were not. Craig J explained the need for a causal nexus at paragraphs 61 and 62 in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. His Honour said that "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act".

32 Having observed the palms and the driveway, and considered the evidence adduced by both parties, we cannot be satisfied, to the extent required by s 10(2) of the Trees Act, that roots of the palms have caused damage to Mr Reeve's driveway. Therefore this section of the application is dismissed.

Conclusions

33 We cannot be satisfied that the damage to either the stormwater pipe or the driveway has been caused by roots of the neighbouring palms. Despite the numerous photographs and video footage from within the pipe, there is nothing to show that roots damaged the pipe or were growing in the pipe. Even if we accept roots were in the pipe, and that blocking the pipe is a form of damage, the initial cause of damage to the pipe, allowing the roots' ingress, is unlikely to be palm roots. Rather, poor pipe installation seems a more likely cause. We do not find the Court has jurisdiction to make orders, but if we did find the jurisdictional tests were satisfied, consideration of discretionary matters would lead us to make no orders anyway. For the same reasons that we cannot be satisfied, on the evidence before us, that the subject trees are the cause of damage, we are also not satisfied that the trees are likely in the near future to cause damage to the applicant's property.

34 As a result, the orders of the Court are:

(1) The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

____________________________

L Durland

Acting Commissioner of the Court

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Decision last updated: 23 September 2014