Land and Environment Court New South Wales

• Medium Neutral Citation: Cussen v Wright & anor [2011] NSWLEC 1015
• Hearing dates: 21 January 2011
• Decision date: 28 January 2011
• Jurisdiction: Class 2
• Before: Fakes C; Galwey AC

Decision

1. Application to remove trees dismissed.

2. Application for compensation upheld in part.

• Catchwords: TREES [NEIGHBOURS]; damage to property; sewer pipes; potential future damage and injury; compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Hinde v Anderson & anor [2009] NSWLEC 1148; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Mr K Cussen (Applicant); Mr G Wright (Respondent); Mrs P Wright (Respondent)
• Representation: Solicitors: K Cussen [litigant in person] (Applicant); Ms R Alamein [solicitor] (Repondent); Greg Walsh & Co (Repondent)
• File Number(s): 20738 of 2010

Judgment

1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Penshurst against the owners of 12 trees growing on an adjoining property.

2 The applicant is seeking the removal of the trees on the basis that some have caused damage to his property - especially his sewer system and that all of the trees, could, in the future, cause damage to his property. He is also concerned that one of the trees could potentially fall and cause injury to someone, especially in high winds.

3 The applicant is also seeking compensation of a sum of $6,230 for work undertaken on his sewer system. The application contains quotes and tax invoices from 3 plumbers.

4 The respondents do not wish to remove the trees.

5 Before considering the evidence, we note that the applicant filed a Notice of Motion for Contempt of Court regarding the failure of the respondents to lodge their material by the time specified in Direction 9 of the Directions of the Court made by the Assistant Registrar at the directions hearing on 16 November 2010. The time set in that direction was 4.30pm on 15 December. The material was handed to the applicant by the second respondent at 7.45 pm on 15 December. The details of the circumstances are in an affidavit attached to a Notice of Motion filed by the respondents' solicitor.

6 On the basis of the late service of documents, the applicant is seeking the Court to disregard the respondents' material.

7 We have considered the applicant's request, as well as the circumstances of the service, in the light of the 'Practice Note - Class 2 Tree Applications' published on the Court's web site. Clause 26 - 'Notification if breach of the Court's directions' is relevant. It reads

If there is any significant breach of the Court's directions, including a breach sufficient to cause slippage in a timetable, the parties must promptly, by e-mail communication or fax to the Registrar, notify the Registrar of the breach. The Registrar may require the parties to attend before the Court if it is considered that the reasons for the breach are not adequately explained in that e-mail communication or facsimile or if the breach might materially affect the timetable. Parties are reminded that where the conduct of either party unnecessarily or unreasonably increases the number of appearances in Court, that party may be at risk of the making of a costs order against them.

8 In this matter we consider that a slippage of 3 hours 15 minutes does not constitute a 'significant' breach of the Court's directions and did not prejudice the applicant's position. Therefore we propose to accept the respondents' material as evidence.

The trees and the site

9 There are 12 trees subject to this application. They form part of a planting of trees and shrubs along the western side boundary of the respondents' property at the rear of the applicant's property. The trees are shown in numerical order on the diagram in the application in a generally north to south direction. Tree 1 is a small Umbrella Tree ( Schefflera actinophylla) ; tree 2 is a very small Jacaranda; trees 3, 5, 8,10 and 12 are mature Liquidambars; tree 4 is a Paperbark (Melaleuca sp) ; tree 6 is a mature Eucalyptus nicholii ; tree 7 a very small Lillypilly (cultivar); and trees 9 and 11 are mature unidentified smooth-barked Eucalypts. There are other small trees and established shrubs along this boundary that are not subject to the application. There is also a Camphor Laurel that predates the other plantings to the east of trees 2 and 3 that is not subject to the application.

10 According to the parties, the applicant's house stands on part of a block of land that was subdivided into 2 lots in about 1983. Prior to this, the block contained a dwelling that was demolished. In 1984 the applicant purchased one block and the respondents the other. The respondents' block adjoins the block that Mr Wright has lived in for 37 years.

11 In 1984 the respondents planted the 5 Liquidambars along the western boundary. In 1985 they planted 4 other trees, 3 Eucalypts and a Melaleuca (trees 4, 6, 9 and 11). According to Mr Wright, at least some of the trees were planted prior to the construction of the applicant's dwelling. The applicant's house was completed in 1985. Trees 1,2 and 7 are more recent plantings.

12 The applicant's dwelling is brick and tile on a slab. The slab is partly on filled land as the site slopes generally to the southeast. A PVC sewer line is located on the eastern side of the applicant's property. The drainage diagram shows 4 connection points from the dwelling to the sewer line. At the northern end there is a connection from a bathroom, then a connection from a toilet, thirdly a connection from the kitchen and finally a connection from an upstairs bathroom. Between the 3 rd and 4 th connections there is a connection from a gully trap and tap. The applicant's sewer pipe then does a 90 turn to connect to a sewer pipe that runs along the southern boundary of the respondents' property (the block purchased in 1984) before entering the Board's sewer at the eastern end of that block.

13 The northern part of the sewer is under a reinforced concrete slab installed as a paved area between the applicant's dwelling and the dividing fence to the east. Tree 6 is just to the south of this slab and the land to the south slopes down to the street.

The damage and relevant background

14 The applicant contends that roots from tree 6, the E. nicholii and tree 12, a Liquidambar, have caused damage to the southern section of his sewer line which resulted in the need to replace that part of the sewer. He is concerned that any or all of the trees along the common boundary could cause future damage to the sewer.

15 According to Mr Wright, Mr Cussen first advised him of a problem with the sewer on 19 May 2010. According to oral evidence, on 22 May, Mr Cussen engaged AA-AZ Plumbing to clear the sewer with high pressure water jetting; it appears that this was only partially successful. The cost of this work was $480. In Mr Wright's affidavit, he states he also attended on that day to have a look at the problem. No roots were retrieved from this clearing.

16 On 23 May, Mr Wright and his nephew Mr Black, a plumber, visited Mr Cussen's property. Mr Wright, a builder, and Mr Black considered that the problem with the sewer could have been caused by gradual settlement of fill and associated pressure on the vertical risers from the sewer pipe leading to cracking of the junctions. They suggested that this might also be due to the way in which the pipes were initially installed.

17 At the time of that inspection, Mr Cussen said that the AA-AZ quote for the repairs was $4000. However there is a quote for $3080 from AA-AZ Plumbing dated 22 May 2010 to "excavate a defective shaft; to rebuild shaft and 1m of house line using 100mm PVC and down pipe and fittings; to run CCTV camera to check drainage; to run jet if necessary; and to backfill and test". There is disagreement between the parties as to when Mr Black gave an estimate for the works but his estimate was $3000 in total for 2 sections at $1500 each.

18 On 24 May, Mr Cussen stated that he contacted the Water Board and was informed that in order for the sewer to pass the required inspection it would have to have been installed in accordance with the standards of the time. He says he was also informed that 300 mm of fill was unlikely to lead to failure. However, there is no formal evidence to support these oral statements.

19 On 26 May Mr Cussen states that AA-AZ Plumbing investigated the pipe with a CCTV camera. There is no evidence of any footage or a report on what was found; nor is there an invoice for this work.

20 On 12 June Mr Cussen engaged Pro-Fix Plumbing to access and inspect the blocked sewer with an electric eel. The notes on the tax invoice suggest that the blockage was caused by tree roots, that further inspection with the use of CCTV camera would be necessary and that the pipe work would need to be replaced. The cost of the inspection was $400. Mr Cussen stated that after this the pipe became fully blocked but he did not bring this to the respondents' attention.

21 On 17 June, Pro-Fix Plumbing replaced about an 8m section of the sewer north of the 90 junction. Photographs taken by the plumbers show fine roots and soil in a broken pipe (presumably broken during excavation) and quite large diameter woody roots in close proximity to the PVC sewer pipe. The photographs show the pipes backfilled with soil and not gravel. There is no indication on the photographs as to the precise location of the roots and therefore no way of knowing to which tree(s) they belong. It is not possible from the photographs to identify the species. The cost of this work was $2600.

22 On 26 June 2010, Mr Cussen wrote to the respondents stating he considered it was clear that the blockage in his sewer was caused by the roots of the Liquidambar in the corner of the respondent's property (tree 12). He requested the removal of that tree and others along the boundary fence and then asked for reimbursement of $3,480 for the cost of plumbing repairs.

23 From the evidence at the hearing it appears that the applicant was made aware that there were further problems upstream of the section of sewer replaced by Pro-Fix Plumbing but again, this was not brought to the attention of the respondents.

24 On 21 July 2010, Mr Cussen engaged P & K Kelly & Son Plumbing to dig up and replace the section of sewer line north of the section replaced by Pro-Fix including the connections to the upstairs bathroom and the kitchen as well as a gully riser with a tap. In addition, work was done to a connection and vent pipe near the applicant's back door at the northern extent of the system.

25 Photographs taken by these plumbers show fine roots in the pipe and large woody roots with fibrous bark beside and between sections of PVC pipe. One photograph shows the completed work with the new pipe in a trench about 500mm wide and backfilled with gravel. At the hearing we were shown the fine roots that had been removed from within the pipe as well as sections of roots in excess of 100 mm in diameter that had been removed from the trench.

26 At the hearing the applicant stated that after the plumbers had finished the work, the line was inspected internally and there were no roots found in the sewer to the north of the section they replaced.

27 On 7 August Mr Cussen wrote to the respondents advising them that additional repair work to the sewer was necessary at a cost of $2750 bringing the total demanded to $6230.

28 In addition to the current damage to the sewer system, the applicant is concerned about future damage that could be caused as trees grow. He is also concerned that Tree 6 could fall and cause damage to his house or injury to anyone on his property.

The respondents' position

29 The respondents do not wish to remove the trees as they contribute to the natural landscape, add to the scenic value of their land and screen the view of Mr Cussen's 2 storey dwelling.

30 Whilst they accept that roots from their trees have penetrated the pipes, they contend that the cause of the ingress is due to factors other than the trees. Mr Wright contends that the soil on which his and Mr Cussen's properties are located is classified as a highly reactive clay which can experience high ground movement from moisture changes. He considers that this, plus the effect of the downward pressure of fill on the risers over time, has led to the cracking of the risers and therefore enabled the ingress of roots. He supports his contentions by noting the separation of a concrete pathway along the south-eastern portion of the applicant's house from the face of the brickwork. This he says is due to gradual settling and subsidence of the fill on which the path is laid. This path is upslope of the section of sewer in contention.

31 The respondents engaged Targett Engineering and Building Pty Ltd to inspect the site and comment on the problem. The author of the report states that the installation of domestic sewerage services is subject to an Australian Standard. [He cites the relevant provisions of the current standard but it is not clear whether that standard was in operation when the applicant's system was installed.] He states that if pipes are to be installed into unstable ground, provision must be made to protect the pipes from excessive soil movement. He considers that the evidence suggests that the protection failed or did not exist. In his opinion, it is not uncommon for pipes to fail in situations where they are bedded and supported within a mixture of stable and unstable ground. He considers this is the principle cause of the initial breakage that enabled the root penetration.

32 Similar statements of the likely cause of the ingress of roots were provided by Mr Black and by John Reynolds, a recently retired plumber with 47 years experience.

Section 10(2)

33 Under s 10(2) the Court must not make an order unless it is satisfied that any of the trees 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. These tests must be applied to each tree.

34 On the evidence before us, we do find that roots of one or more of the respondents' trees have caused damage to the applicant's sewer and so, in broad terms, the jurisdiction is enlivened and the Court may make an order under s 9 of the Act. The likelihood of future damage or injury is considered elsewhere in the judgment.

Section 12 considerations

35 Before determining an application, the Court is to consider matters relevant to the trees and the landscape under Section 12 of the Act.

36 We find that the trees are entirely located on the respondents' land (s 12(a)); they contribute to the privacy and amenity of the two properties by providing shade and screening (s 12(b3)); they contribute to the scenic value of the land on which they are growing (s 12(e)); and as they can be seen from the street and the immediate area they contribute to public amenity (s 12(f)).

37 With respect to s 12 h(i) and factors other than the trees that may have contributed to the damage, as previously stated, reports provided by the respondent stated that soil settling was a principal cause of damage to the pipes, especially by putting pressure on and creating cracks in risers, and that roots then entered the pipes through these cracks. The inference is that roots could not have entered the pipes had this damage not occurred. While we find that this is likely to have contributed to the damage, we also note that photos of the repair works provided by the applicant show a large woody root growing between two pipes and filling the small amount of soil space between the pipes. In this situation, we find it feasible and likely that growth in girth of this root would have caused cracking to a pipe, allowing fine roots to then grow into and block the pipe. It is our view that damage to the pipe could therefore have occurred through both these causes described above. In this case, trees are not the only contributing factor.

38 Section (h)(ii) considers the actions taken by either of the parties. At the time that the section of damaged pipe was replaced, the plumbing contractor engaged by the applicant had the opportunity to line the open trench with a membrane that would prevent new root growth into the crushed rock backfill around the pipe. This was not done. To do this now would require the re-opening of the entire length of the trench.

39 With respect to s 12(j), any other relevant matters. We consider that, despite the applicant having knowledge of roots from the respondents' trees being found in the applicant's pipes, the respondents were not kept informed of the extent of works required or their costs and were not given an opportunity to obtain or review quotes for the work. Similarly, during the course of these works, the contractor found that there were roots in another section of pipe and informed the applicant that this further section would need replacing. The applicant did not get that contractor to do this additional work, but rather waited to obtain a quote from at least one other contractor. The letter sent to the respondents on 26 June 2010 did not inform the respondents that further works were required or that the applicant was getting quotes for this work. Again, the respondents had no opportunity to respond before receiving the second letter (sent 7 August 2010) requesting reimbursement for the costs of the additional works. In our view, the applicant had opportunity to inform the respondents throughout the process; instead, after initial discussions in May 2010, the respondents only received requests for reimbursement of repair costs.

Findings and conclusions

40 We do find from the photographs taken by P & K Kelly & Son that the roots shown surrounding the sewer pipe are likely to come from Tree 6, the Eucalyptus nicholii . We also accept that the roots inside the applicant's sewer pipe are highly likely to have come from the respondents' trees, however, there was no evidence indicating the species of the tree(s).

41 We also note that the damage to the system is to the south of Tree 6 and that the oral evidence given by Mr Cussen is that the plumbers found no roots to the north of this point.

42 Turning to each of the trees subject to the application, there is no evidence to show that trees 1-5 have caused, are causing, or are likely in the near future to cause, damage to the applicant's property. Therefore as none of the tests under s 10(2) are satisfied for these trees, the application to remove these trees is dismissed.

43 Whilst there may have been some contribution from trees 7-11 to the damage to the applicant's sewer, there is no evidence to prove that nexus. The sewer has now been replaced and apparently installed in accordance with the current standards and surrounding roots removed. We do not consider that a problem currently exists or is likely in the near future to exist. Therefore on the basis of the discretion afforded under s 9 of the Act, no orders will be made for the removal of these trees.

44 Putting Mr Cussen's case at its highest, the largest tree in proximity to the breakage and blockage at the southern end of the system is tree 12, a Liquidambar. While the photographs indicate some woody roots of a reasonable diameter in the vicinity of the pipe, those roots have been removed and nearby roots cut. We consider it unlikely that these roots will cause damage in the foreseeable future and no order will be made for the removal of this tree.

45 Similarly, while we are quite confident that the roots from tree 6, the Eucalyptus nicholii did contribute to the damage to the pipes in the vicinity of the tap gully, those roots have also been removed and cut back. We do not see any likelihood of the problem reoccurring in the near future. We note that the trees and the sewer system are a similar age, the first problems arose after 25 years of co-existence. With respect to Mr Cussen's fears that tree 6 may fail onto his property, we see no evidence that this is likely to happen in the foreseeable future. There were no obvious structural defects or any signs of instability in the root plate. We consider the cutting of roots for the sewer repair is unlikely to destabilise the tree as they were some distance from the tree. Therefore as a result, the application to remove tree 6 is dismissed.

46 Mr Cussen stated that he does not want to go through this process at any stage in the future which is why he is seeking the removal of the trees and their replacement with smaller growing trees with "less invasive" root systems.

47 We drew Mr Cussen's attention to the guidance principle in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination and cannot be an indefinite period. If circumstances change and there is fresh evidence of damage or likely injury, an applicant may make a new application. This is considered in Hinde v Anderson & anor [2009] NSWLEC 1148 and Zangari v Miller (No 2) [2010] NSWLEC 1093.

48 Turning to the claim for compensation, the first invoice from AA-AZ plumbers is for clearing and investigating a blockage. There is no mention of roots and while the applicant did notify the respondent before the clearing took place, the cause was not identified. We do not consider the respondents should reimburse the applicant for this sum as it is a routine investigation.

49 We note that a portion of the final invoice from P & K Kelly & Son plumbers was for works not directly associated with the blocked sewer. From the description of the works we estimate that perhaps 70% of this is likely to be related to the repair of the sewer.

50 Taking into account the discounting we have allowed for the AA-AZ invoice and 30% of the Kelly invoice, we consider the amount reasonably in contention is $4925.

51 The respondents offered Mr Cussen a contribution of $3000 towards the work as they accept that the roots from their trees did cause a blockage but contest the cause of the breakage. This is approximately 60% of the amount we determined above. We consider this to be an appropriate sum for the reasons outlined in para 39 of this judgment relating to notification of the respondents as well as the contribution of the reactive soil, subsidence of fill and original installation of the pipe. We note that the sum of $3000 is that quoted by Mr Black for the entirety of the repair work.

52 Therefore as a result of the forgoing, the Orders of the Court are:

(1) The application to remove 12 trees is dismissed.

(2) The respondents are to pay the applicant the amount of $3000 within 30 days of the dates of these orders.

J Fakes

Commissioner of the Court

D Galwey

Acting Commissioner of the Court

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Decision last updated: 21 May 2012