Land and Environment Court New South Wales

• Medium Neutral Citation: Spinelli v Johnson & ors [2014] NSWLEC 1066
• Hearing dates: 28 March 2014
• Decision date: 14 April 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application is dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property - sewer pipe; Potential injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Ms H Spinelli (Applicant); Mr G Johnson (First Respondent); Ms P Johnson (Second Respondent); Mr W Fahd (Third Respondent)
• Representation: Applicant: Ms H Spinelli (Litigant in person); First respondent: Mr G Johnson (Litigant in person); Second respondent: Mr G Johnson (Agent); Third Respondent: Mr W Fahd (Litigant in person)
• File Number(s): 20892 of 2013

Judgment

1 COMMISSIONER: The applicant has owned her Picnic Point property for almost 30 years. She contends that for the last 15 years roots from an Evergreen Alder (Alnus sp) have been causing blockages to the sewer line that services her property. The applicant maintains that about 20 years ago, the first and second respondents planted the tree directly over a water board drainage easement located on their property, which connects the applicant's property to the street behind.

2 The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the tree and repairs to the sewer pipe at the first and second respondents' expense. Apart from damage to property, the applicant is also concerned about the potential for injury or illness as a result of overflowing sewage.

3 The first and second respondents have recently sold their property and the third respondent, the new owner, has been joined as a party to these proceedings.

4 The new owner values the tree for its amenity and the privacy it affords his dwelling and does not wish to have it removed. He is also reluctant to dig up a portion of the landscaped front garden behind a stone retaining wall for the replacement of the sewer. However, he does not wish the applicant to be subjected to the consequences of a backed up sewer.

5 The first respondent contends that as the alleged damage is on his property, it is beyond the Court's jurisdiction to make any orders with respect to repair of the sewer pipe.

6 The respondents' property is burdened by an easement to drain water and sewage from the applicant's property. Documents attached to the first respondent's affidavit indicate that the sewer pipes pre-existed the subdivision of land that created the respondents' lot. Whether the pipes belong to the applicant or the Metropolitan Water and Drainage Board (as it then was) is unclear, however, the pipes are located on the respondents' land.

7 The tree in question is located close to the respondents' street frontage. It is several metres from a sewer inspection point/riser located in a retained garden bed and close to the stone retaining wall. Apart from the Alder, there is a mature Acer negundo (Box Elder) growing in the respondents' rear garden, close to or within the area of the easement. This tree is approximately half way between the applicant's laundry and the Alder.

8 The last recorded blockage was in September 2011. According to the applicant, a plumber cleared the blockage and inspected the pipe with a camera. The plumber told the applicant he found roots in a cracked section about one metre from the neighbours' street boundary. There is no photographic record of this inspection. The tax invoice for the work states that the sewer was unblocked from the respondents' property, roots were found and cut, and the pipe was checked to 15m upstream. There is no mention of a crack; the invoice states "found roots in IO" [Inspection outlet].

9 Prior to this event, invoices attached to the application claim form show that blockages were cleared twice in June 2011 and once in August 1995.

10 According to the applicant, the blockage causes the sewer to overflow from an inspection point behind an outdoor laundry and toilet onto a concrete path between the building and a garden bed that adjoins the applicant's side fence. The applicant suspects that while the system is not currently blocked, it may be slowing down again.

The Court's jurisdiction

11 Section 7 of the Act states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

12 That is, the damaged property must be on the applicant's land.

13 Section 9(1) enables the Court to make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

14 The next relevant jurisdictional tests are found in s 10(2) of the Act. This section states:

(2) The Court must not make an order under this Part unless it is satisfied:

(a) that the tree has caused, is causing, or could in the near future cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

15 The level of satisfaction 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...".

16 If any part of s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 is engaged. Before determining what, if any, orders should be made the Court must consider the relevant discretionary matters in s 12 of the Act.

Findings

17 In regards to s 10(2)(a) and damage to property, I agree with the second respondent in that s 7 only allows an application to be made concerning damage to property that is on the applicant's land. That is, the Court cannot consider damage to property not on the applicant's land. In this case while the pipes in question service the applicant's property, and are protected by an easement that burdens the respondents' land and benefits the applicant's land, the pipes in question are clearly on the respondents' property.

18 However, on the basis of the plumbing invoices attached to the claim form, I accept that on several occasions, tree roots have blocked the applicant's sewer. The evidence, such as it is, suggests that roots from the Alder are a possible cause. Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [179] makes it clear that the tree need only be "a cause" in order to satisfy s 10(2). It is also reasonable to assume that the discharge of effluent onto the applicant's property could reasonably cause injury through illness. Therefore, to the extent required by s 10(2)(b) I am satisfied that the Court's jurisdiction to consider what, if any, orders should be made, is engaged.

19 As stated above, the making of orders requires consideration of a number of discretionary matters in s 12 of the Act. The following clauses are relevant:

(a) The tree is furthest from the common boundary and a considerable distance from the laundry/ toilet.

(b3) The tree contributes to the landscape, privacy, wind protection and general amenity of the respondents' land. It contributes to the natural landscape and scenic value of the land on which it is goring (e) and, given its location, it is also prominent in the streetscape and thus contributes to public amenity (f).

(d) The first respondent maintains that the tree provides shelter and habitat for birds and Ring-tail possums.

(g) Given its position near the top of a retaining wall, the respondents submit that the tree has a role in maintaining soil stability.

(i) The first respondent states that the tree was planted outside the drainage easement about 18 years ago. It is his recollection that the applicant only once, in 2011, sought permission for a plumber to access his property in order to clear the sewer. He maintains that apart from the Evergreen Alder, there are a number of palms and other trees on the applicant's property that are directly adjacent to the terracotta sewer pipes and that these may have also contributed to or caused the blockage. As stated above, there is a mature Box Elder close to the easement. It is also noted that the sewer pipes are clay and of a reasonable age.

(s) The outdoor toilet/ laundry is down slope of and in a building secondary to the applicant's dwelling.

20 The applicant's statement that effluent has discharged onto her property is not disputed. The only 'evidence' that the respondents' tree has contributed to this discharge is an oral statement made by the plumber to the applicant and a brief note in the invoice identifying that he "found roots in the IO". No camera footage was taken to accurately identify the location of ingress of roots into the pipes. Apart from the applicant's statement that the sewer seems to be "slowing down", there is no evidence to suggest that another discharge is likely in the near future. It is also unclear as to whether there are other root incursions elsewhere in the clay pipes or anything else contributing to the problem.

21 Overall, I am not satisfied that the orders the applicant seeks should be made. Removal of the tree cannot be justified on the evidence provided. Until the location of the damage and its cause are accurately identified, there is no basis for ordering any repair of the pipes. Similarly, I find there is insufficient evidence to order any clearing of the pipes on a precautionary basis. Therefore, I do not propose to make any orders for any intervention with the tree or any rectification of the pipes at the respondents' expense at this stage.

22 However, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change and there is fresh evidence, a new application can be made. The third respondent and new owner is now aware of the potential basis of a new application.

23 Therefore, after considering the evidence and the circumstances of this matter, the Orders of the Court are:

(1) The application is dismissed.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 14 April 2014