Land and Environment Court New South Wales

• Medium Neutral Citation: Muir v Owners Corporation SP 35683 [2011] NSWLEC 1276
• Hearing dates: 15 September 2011
• Decision date: 23 September 2011
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

1.The application to remove the tree is dismissed.

2.If the applicant has relaid the paved area between her dwelling and Womerah Lane within six months of the date of these orders, the applicant is to serve the respondent with a receipted account for this work within 28 days of receipt of such account but no later than seven months from today's date.

3.If order (2) is complied with, the respondent is to pay the applicants $1,175 within 30 days of service of the receipted account in order (2).

4.If order (2) is not complied with, order (3) lapses at the expiry of seven months from today's date.

5.The applicant is to cut tree roots within 100mm of the sewer inspection riser, shown in Figure 2 on page 5 of Mr Kokot's report, within 30 days of the date of these orders. The roots are to be cut cleanly with a saw. The roots, beyond where they are cut, are to be removed from the ground.

• Catchwords: TREES [NEIGHBOURS]; application to remove tree is dismissed; damage to property; paving; sewer pipes; compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: APPLICANT; B Muir; RESPONDENT; Owners Corporation SP 35683
• Representation: Applicant; B Muir [litigant in person]; Respondents; A Langham; A Langham; J Iesu [litigants in person]
• File Number(s): 20473 of 2011

Judgment

1 COMMISSIONER: 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 Darlinghurst against the owners of a tree growing on an adjoining property.

2 The applicant is seeking the removal of the neighbouring tree or the removal of all roots from that tree within her property and measures to prevent their future growth into her property. She also seeks compensation for plumbing works carried out on her property, for repair to the brick paving and for the sewer rectification works she says are required. She seeks these orders on the basis that tree roots have caused damage to her sewer system and that they could, in the future, cause further damage.

3 The applicant also seeks orders for recovering the costs of a report from a consulting arborist. I informed the applicant that Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses. Claims for these costs must be made by a Notice of Motion which is heard and determined by a Judge.

4 The respondents do not wish to remove the tree. They are willing to contribute to the costs of repairing the paving.

The tree and the site

5 The subject tree is a 10-metre tall Evergreen Magnolia, or Bull Bay ( Magnolia grandiflora ) growing in the northwest corner of the respondent's property, approximately 200 mm east of the common boundary with the applicant's property. It is in good health and is structurally sound.

6 One of the respondents has lived at the property since 1997 and states that the tree was already established and of a fair height at that time.

7 The tree is on the common property of the Owners' Corporation. The dwelling has two residences. One of the respondents owns the upstairs residence and the other two own the downstairs residence.

The damage and relevant background

8 The applicant's claim concerns damage from the tree's roots to both the paving and the sewer. The hearing took place on the applicant's property and included a view of the paved area.

9 The rear courtyard of her property is covered with brick pavers. The paved area is approximately 34m 2 , as shown in a quotation for relaying the paving, provided on 15 June 2011. That quotation is for $3,524.

10 An area of the paved courtyard is uneven. The pattern of disruption to the surface, relative to the location of the tree, is consistent with damage caused by tree roots. Photographs included in the arborist's report submitted with the application confirm that roots radiating outward from the Magnolia are directly beneath the uneven paving.

11 The area affected by tree roots appears to be approximately one third of the paved area, or approximately 12m 2 .

12 The applicant states that the sewer system in her property, in the vicinity of the tree, has failed three times. Each time, sewage came to the surface of the paved courtyard.

13 The first failure of the sewer occurred in January 2010. Highlander Plumbing attended the site and used a water jet to clear the sewer line. The plumber stated on the invoice that roots were growing into the PVC pipe at the boundary trap. He also stated that the roots were from the tree next door, although he did not describe how this was determined. The cost of the works was $426.

14 At the same time Highlander Plumbing also provided a quotation for replacement of the boundary trap. The quotation of $3,133 included removal and relaying of the pavers around the boundary trap. The quotation stated that the plumber would "...dig down 1.3m to the bottom of the boundary trap."

15 The sewer failed again in March 2010. Highlander Plumbing again attended the site and used a water jet to clear the sewer line.

16 The plumber stated on the invoice that "With the use of a camera we found a crack in the pipe where it joins onto the 4" boundary trap. Tree roots are growing through the crack."

17 The cost of the plumber's second visit was $490.

18 In June 2010 the applicant obtained a second quotation, from Davidson Plumbing, for replacement of the sewer boundary trap. The quotation of $3,966 included removal and relaying of the pavers around the boundary trap.

19 The sewer failed again in July 2011. Highlander Plumbing used a water jet and CCTV camera to clear the sewer line.

20 The plumber stated on the invoice that "Tree roots were removed from the inlet junction into the boundary trap inside the property of 35 Womerah Lane."

21 The cost of the plumber's third visit was $683.

22 At the time of the hearing, the paved courtyard area remains in an uneven state and the boundary trap has not been replaced.

23 In June 2010 Mark Kokot, of Rain Tree Consulting, provided an "Infrastructure Damage and Tree Root Invasion Assessment Report". Pavers were removed, roots were exposed using an air knife and two root samples were collected and sent to John Ford for identification. The root samples were collected next to an inspection riser that can be seen in a photograph shown on page 5 of Mr Kokot's report.

24 Mr Ford identified one of the samples as a Ficus species (Fig) and the other as a Magnolia species. There is no Fig in the vicinity, although one respondent recalled there being a Fig on the applicant's land some years ago.

25 Tree roots can be seen in the photograph on page 7 of Mr Kokot's report radiating outward from the direction of the Magnolia. The evidence suggests that the Magnolia's roots have caused some disruption to the paved surface.

26 The only visible evidence of tree roots growing near the sewer pipe is shown in photographs on pages 4, 5, 7 and 8 of Mr Kokot's report. These photographs only show that tree roots are adjacent to the inspection riser.

27 No evidence was presented that the inspection riser, or the section of sewer pipe to which it is connected, was damaged.

28 The plumber had only identified that the pipe was cracked where it joins the boundary trap. The boundary trap, and the sewer pipe's junction with it, have not been shown in any evidence. There is no evidence to show that tree roots damaged the pipe at that point, only that tree roots had entered the pipe through a crack at that point. The cause of the crack has not been identified.

29 Mr Kokot provided a further letter dated 20 April 2011 in which he states that "...the tree and the larger species of Magnolia trees in general have the capability and capacity to cause undergroung (sic) sewer and plumbing pipe displacement."

30 Mr Kokot's letter does not provide any evidence that this Magnolia tree has caused damage to this pipe.

The respondents' position

31 The respondents do not wish to remove the Magnolia as it provides amenity to their property. They accept that the tree's roots have disrupted the brick paved surface but do not accept that roots have damaged the pipe.

Jurisdiction

32 Under s 10(2) 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.

33 On the evidence before me, I find that roots of the Magnolia have damaged brick paving on the applicant's property, so the jurisdiction is enlivened and the Court may make an order under s 9 of the Act.

Section 12 considerations

34 Before determining an application, the Court is to consider matters relevant to the tree and the landscape under s 12 of the Act.

(a) The tree is situated entirely within the respondent's property in close proximity to the common boundary with the applicant's property.

(b) Under normal circumstances consent would be required from the City of Sydney Council to interfere with the tree.

(b1) Approval would not be required to interfere with the tree under the Native Vegetation Act 2003 .

(b2) Due to its proximity to the boundary, cutting roots from the tree at the boundary may cause the tree's health to decline, may shorten its life expectancy and may cause it to become unstable.

(b3) The tree contributes to the landscaping of the respondent's land and provides some shade and privacy.

(c) The tree has no historical, cultural, social or scientific value.

(d) The tree makes no significant contribution to the local ecosystem.

(e) The tree contributes to the scenic value of the land on which it is situated.

(f) The tree can be seen from the street, so makes some contribution to public amenity.

(g) The tree has no impact on soil stability, the water table or other natural features.

(h)(i) Although tree roots were found in, and removed from, the sewer pipe, no evidence has been provided that tree roots caused the crack at the pipe's junction with the boundary trap. The boundary trap is described as being at some depth. Tree roots typically grow in the upper layer of soil and only grow more deeply if conditions at a greater level favour their growth. Such might be the case if there was already a crack in the pipe, resulting in higher soil moisture levels in the vicinity of the crack, and so encouraging root growth there. Furthermore, the second and third occasions of clearing roots from the pipe were only required because the applicant had not carried out the repairs to the sewer pipe that had been recommended and quoted by the plumber. The applicant contends that there was no point in repairing the pipe if tree roots were allowed to grow back into the vicinity. However, it is common for tree roots to be growing in the vicinity of properly installed PVC pipes without causing damage.

(h)(ii) The tree owner has not taken any steps to prevent the damage. The applicant has not taken the steps recommended by two plumbers to have the boundary trap and adjoining pipe replaced. This has allowed tree roots to twice regrow into the sewer pipe through a known existing crack.

(i) There is no evidence that the tree is likely to cause injury to any person.

Findings and conclusions

35 Based on the evidence, including the onsite view and the photographs in Mr Kokot's report, I find that tree roots have caused disruption to approximately one third of the paved area in the applicant's property. The damage is substantial enough to require rectification.

36 The quotation for relaying of the entire paved area was $3,524. A third of this amount is $1,175.

37 I accept that roots that have grown into the applicant's sewer pipe are likely to be from the Magnolia. However there is no evidence to suggest that tree roots caused the crack in the PVC pipe where it joins the boundary trap. It would therefore be an unfair burden on the tree's owners to pay for repair to the sewer system or for repeated clearing of the sewer pipe.

38 In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at 62 Craig J referred to "something more than a theoretical possibility" being required in order to engage the power under the Act. Mr Kokot's evidence only states that the tree has the capability and capacity to cause damage to the pipe. There is nothing before me that convinces me on the balance of probabilities that the tree caused the initial crack in the sewer pipe.

39 There is no evidence to suggest that roots of the Magnolia will cause damage to a properly repaired sewer pipe and boundary trap. Therefore there is no requirement to prevent roots growing into the applicant's property.

40 It may be necessary to remove tree roots directly beneath the paving so that the pavers can be replaced evenly. Roots can be cut adjacent to the inspection riser without compromising the tree's stability.

Orders

41 As a result of the foregoing, the Orders of the Court are:

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

(2) If the applicant has relaid the paved area between her dwelling and Womerah Lane within six months of the date of these orders, the applicant is to serve the respondent with a receipted account for this work within 28 days of receipt of such account but no later than seven months from today's date.

(3) If order (2) is complied with, the respondent is to pay the applicants $1,175 within 30 days of service of the receipted account in order (2).

(4) If order (2) is not complied with, order (3) lapses at the expiry of seven months from today's date.

(5) The applicant is to cut tree roots within 100mm of the sewer inspection riser, shown in Figure 2 on page 5 of Mr Kokot's report, within 30 days of the date of these orders. The roots are to be cut cleanly with a saw. The roots, beyond where they are cut, are to be removed from the ground.

_______________________

D Galwey

Acting Commissioner of the Court

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Amendments

26 September 2011 - Re-number orders in (1)-(5) in place of (a)-(e)
Amended paragraphs: [41] Orders

Decision last updated: 26 September 2011