Land and Environment Court New South Wales

• Medium Neutral Citation: Soyunmez v Kasule [2011] NSWLEC 1233
• Hearing dates: 12 August 2011
• Decision date: 12 August 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove trees dismissed. Orders made for replacement of sewer pipe and repair of pathway.

• Catchwords: TREES [NEIGHBOURS] damage to property; factors other than trees; apportionment of cost of rectification.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
• Category: Principal judgment
• Parties: S Soyunmez (Applicant); J & A Kasule (Respondents)
• Representation: Applicant: S Soyunmez (Litigant in Person); Respondents: J & A Kasule (Litigants in Person)
• File Number(s): 20343 of 2011

Judgment

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 s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Auburn against the owners of trees growing on an adjoining property.

2 The applicant is seeking the removal of 4 trees growing at the rear of the respondents' property as she contends that roots from the trees have blocked her sewer and cracked the side path on the southern side of her dwelling.

3 The trees in question are 3 Cupressus sp and 1 Eucalyptus sp. The Cypress trees are growing in a narrow garden bed that adjoins the dividing fence between the parties' properties. There are two trees, including a mature Pittosporum undulatum growing along the rear fence of the property to the east of the respondents' property. The southern side boundary of the applicant's property adjoins these two properties.

4 I was shown a woody root about 100mm in diameter from one of the Cypress protruding beneath the fence. The applicant had severed it about 6 years ago. The concrete pathway runs the length of the house between the dividing fence and the wall of the dwelling. It is about 50 mm thick and sits on what felt like soil rather than road base. There are no expansion joints in any part of it. Several cracks were observed. The applicant contends that roots from the respondents' trees have caused the cracks. I note that the concrete paths to the east and west of the path in question are also in poor condition and do not appear to have been professionally installed.

5 The applicant has owned her property since 1997. She estimates the house to be at least 30 years old. The pathway was present when she moved in and is therefore more than 14 years old. The sewer runs beneath the path along the southern side of the applicant's property.

6 The applicant stated that she first noticed the cracked path and the blocked sewer in 2004 and she informed the then owners of the respondents' property. She stated that they refused to do anything about the trees.

7 The respondents purchased their property in September 2008. About 6 months after they moved in, the applicant approached them about the issues with the sewer and the path.

8 The sewer pipe beneath the path is mostly terra-cotta however a small section near an inspection point and an inlet at the western end of the path was replaced with PVC in 2009. The replacement was necessitated by blockage with tree roots. The respondents removed a nearby Cypress after that section of sewer was replaced.

9 The application includes a letter from the applicant's plumber concerning the sewer: It has been cleared by me about 5 times, and the problem is recurring. In my opinion the blockages are caused by the trees next door , as there are no other trees near her sewer along that line.

10 The plumber did not attend the on-site hearing and there were no roots that had been removed from the sewer for me to inspect. However, the applicant pointed out an area in the vicinity of two of the cypress trees that the plumber had said was blocked with roots. The last time the sewer was cleared was April 2011.

11 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.

12 In this regard, the applicant seeks the removal of 4 trees. While the applicant has provided no material evidence to show what roots have caused the blockages to her sewer, I am satisfied on the basis of the previous repairs to the sewer, the letter from the plumber, and the likely interactions between tree roots and old terra-cotta sewer pipes, that roots of one or more of the trees subject to the application have caused blockages and are likely to have contributed to the cracks in the concrete.

13 Therefore as at least one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may consider what, if any, orders should be made.

14 Section 9 of the Act affords a degree of discretion in the making of orders. The Court may make any orders it sees fit to remedy, restrain or prevent damage to property or injury to persons. There is no obligation to simply say 'yes' or 'no' to the orders the applicant seeks.

15 The making of orders requires consideration of the discretionary matters listed in s 12 of the Act. Of relevance are the following:

(a) The trees are wholly located on the respondents' property.

(d) The eucalypt is likely to contribute to the local ecosystem and to biodiversity.

(e)(f) The trees contribute to the scenic value of the respondents land and, as they can be seen from the street, they contribute to public amenity.

(h)(i) In terms of other factors that have contributed to the damage, as previously stated, the concrete path is very thin with no apparent conventional base and no expansion joints. I consider the age and the inadequate construction of the path to be the predominant reasons for its condition although some uplift by roots may have contributed to the cracks. The sewer pipes are terra-cotta in excess of 30 years old. Pipes must be cracked in some way to enable the ingress of roots. There are trees other than those belonging to the respondents that are in close proximity to the applicant's sewer.

(h)(ii) In the time the respondents have known about the problem they have removed one tree.

16 Given the lack of proof as to which tree roots are blocking the sewer, I am not prepared to order the removal of the respondents' trees. However, given the apparent frequency of the blockages, and the presence of other nearby trees, the only satisfactory way of preventing further blockages is to replace the terra-cotta pipes with PVC. This will necessitate the removal of some of the path.

17 Given that the applicant knew of the problem for at least 4 years before the respondents purchased their dwelling, the respondents cannot be held responsible for the full extent of the damage (see Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069 at [5]) . The respondents have only known of the problem for 2.5 of the at least 7 years that is has existed. However, as some blockages have occurred in the time since they have owned the property, some compensation is reasonable.

18 I consider that a contribution of 30% to the cost of replacing the applicant's sewer is reasonable in the circumstances. The apportionment is based on the time that they have been aware of the problem and the fact that the pipes are earthenware - that is, the construction and material nature of the pipes are likely to contribute in some way to the ongoing blockages.

19 As the applicant's sewer extends beyond the respondents' boundary, the respondents should only be responsible for the section between the existing PVC pipe to their boundary - a distance of 8m.

20 In regards to the concrete path, given its age and poor construction, the respondents' contribution will be limited to 10% of the cost of replacing the 8m section of path that overlies the sewer pipe.

21 Any additional works to the path and the sewer, as well as the balance of the costs of their replacement, are to be met by the applicant.

22 Therefore as a consequence of the forgoing, the Orders of the Court are:

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

(2) Within 60 days of the date of these orders, the applicant is to obtain 3 written quotes for the replacement of the sewer pipe with PVC and the replacement of the concrete path. The quotes must give a rate per linear metre for both the installation of the sewer pipe and the laying of the concrete path.

(3) The applicant is to give the respondents a copy of the quotes.

(4) The applicant is to select the cheapest quote and the works are to be completed within 120 days of the date of these orders otherwise order 5 lapses.

(5) The respondents are to reimburse the applicant for 30% of the cost of replacing 8m of sewer pipe and 10% of the cost of replacing 8m of concrete path within 21 days of the receipt of a tax invoice for the completed works.

___________________________

J Fakes

Commissioner of the Court

Decision last updated: 15 August 2011