Land and Environment Court New South Wales

• Medium Neutral Citation: Timmins v Park [2011] NSWLEC 1308
• Hearing dates: 27 September, 26 October 2011
• Decision date: 31 October 2011
• Jurisdiction: Class 2
• Before: Pearson C

Decision

Application upheld in part

• Catchwords: Trees (Neighbours) - damage to property - vines
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Amendment Act 2010; Trees (Disputes Between Neighbours) Regulation 2007; Limitation Act 1969
• Cases Cited: Timmins v Park [2010] NSWLEC 458; Buckingham v Ryder [2007] NSWLEC 458; Robson v Leischke [2008] NSWLEC 152; Moroney v John [2008] NSWLEC 32; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Hill v Dance [20087] NSWLEC 642
• Category: Principal judgment
• Parties: Barbara Timmins (Applicant); Sam Park (Respondent)
• Representation: Applicant in person; Mr Jim Park, agent (Respondent)
• File Number(s): 20584 of 2011

Judgment

1 On 23 June 2011 Mrs Timmins filed an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders under Part 2 of the Act in relation to plants growing on the neighbouring property owned by Mr Sam Park.

2 This application is the second application made by the applicant under the Act in relation to the plants. The first application was made on 9 March 2010, and heard and determined by Moore SC and Hewett AC on 21 May 2010: Timmins v Park [2010] NSWLEC 1178 (the 2010 Application). In that application Mrs Timmins sought orders for removal of the vegetation and for compensation for rectification of damage to her household sewer line and reinstatement of the pathway on her side of the boundary. The Commissioners were satisfied that the vegetation the subject of the application was Bougainvillea and other vines growing along and supported by a corrugated iron and chicken wire fence between the two properties. At that time, vines were not a "tree" for the purposes of the Act: Buckingham v Ryder [2007] NSWLEC 458. Moore SC and Hewett AC held that there was no jurisdiction to make orders, and dismissed the application.

3 The Commissioners noted that the Trees (Disputes Between Neighbours) Act 2010 (the amending Act), which amended the Trees (Disputes Between Neighbours) Regulation 2007 to prescribe "any plant that is a vine" as a tree for the purposes of the Act, had been passed but had not yet commenced. The Commissioners noted:

12 The effect of that change will be that, should Ms Timmins make some further application after that regulation has come into effect, the jurisdictional issue that has arisen on this occasion (that prevents us determining what relief if any should be made for the matters of causation with which we have dealt) would be removed and the Court would be able to hear and determine any new application.

4 Ms Timmins has now made that application, and is seeking compensation for rectification of damage and orders in relation to the sewer, the pathway and the dividing fence.

5 The background to the 2010 Application is provided in paragraphs [5]-[7] of the decision of Moore SC and Hewett AC. In summary, they record that in December 2008 Ms Timmins called a plumber because of a blockage in the sewer; the plumber undertook a line clearing examination and observed that the pipes were generally in good condition except for the vertical riser, and that there was a "tree root infestation" in the pipes; in December 2009 there was a further blockage in the pipe which caused effluent to be discharged on Mr Park's property. Mr Park caused the vegetation along the rear thirds of the boundary fence to be poisoned, and severed a major root of the vegetation which was located in the vicinity of the sewer pipe riser. The Commissioners recorded their observation that there was an effluent seepage coming from the direction of Ms Timmins' property on to Mr Park's property, which was located at a point commencing 2 or 3m to the west of the major element of a plant growing on Mr Park's property and which was supported by the fence. The Commissioners found:

9 We are satisfied, on the uncontradicted evidence of Mr Park's brother and our own observations of it, that the seepage that we have inspected coming from the vicinity of the boundary is effluent. There is only one logical source of that effluent and that is Ms Timmins' sewer line on her property. We are satisfied, to the extent necessary on the civil burden of proof, that the likely cause of that influence seepage is from a root infestation coming from the vegetation - that is either the Bougainvillea or the other vegetation growing on Mr Park's property in the vicinity - there being, in our assessment, no other vegetation reasonably proximate that could conceivably be the cause of the relevant root infestation causing leakage from the sewer line.

6 The hearing of this second application commenced in Belmont court on 27 September 2011, with evidence from Mrs Timmins and from Mr Jim Park, and included a view. Mrs Timmins gave evidence about having a plumber clear and inspect the sewer pipe in December 2008, at a cost of $847. She has had another plumber quote for investigating the work required to "resolve the problem with the blocked and broken sewer pipe", at $250-$500. That quotation is dated 14 September 2010. Mrs Timmins gave evidence about conversations with Mr Park in which he has refused to pay. Mrs Timmins stated that since the hearing of the 2010 Application, the leakage has stopped; the lid of the sewer riser had initially been lifted up but now it is sealed. Mrs Timmins stated that she is concerned that Mr Park may have arranged to have some plumbing work undertaken and that she needs to know if it has been done correctly. She has not arranged to have a plumber to carry out investigation or work. Mrs Timmins stated that the sewer pipes are earthenware, and approximately 40 or more years old, and that she had been advised by the plumber that they may need to be replaced, but that they were in excellent condition.

7 Mr Jim Park is acting as agent for the respondent. He is the brother of the respondent and stated that he visits every week. As soon as the Commissioners concluded the hearing in May 2010 he and his brother removed the vegetation. They organised a plumber to clear the blockage, however Mrs Timmins ordered them off her property. He and his brother poisoned the plants and it took a while before the leak stopped. He has not done anything to the sewer pipe and he does not know if anyone else has.

8 Mr Jim Park provided a written statement from Mr Sam Park (Ex 1) in which he states that the problem of the leaking sewer started in 2007. He broke a small section of the path, with the consent of Mrs Timmins, to see if he could locate the problem. After Mrs Timmins told him that her plumber had said the problem was his sewer he contacted Hunter Water Corporation who sent an inspector, who advised him that the problem was not his sewer. He contacted Lake Macquarie Council in November 2009 and the Council advised Mrs Timmins that she should engage a plumber. Mr Park states that at no time has Mrs Timmins requested compensation for the plumber's bill. Mr Park states that since he carried out the work to remove the vegetation, remove roots where possible, and poison the roots, the sewerage has stopped leaking.

9 The photographs provided by Mr Jim Park (Ex 1) and the view confirm that the properties owned by Mrs Timmins and Mr Park slope down from the street, and that there is a slope generally from north to south, with Mrs Timmins' property being on the higher side. Part of the boundary between Ms Timmins' property and Mr Park's property to the south comprises a stone retaining wall, next to the downward sloping driveway to the garage on Mr Park's property. The concrete pathway running along the side of Ms Timmins' house, above the sewer line, is reasonably level, and is cracked in parts. There is a hole in the concrete path which Mrs Timmins and Mr Park identified as the part of the path broken by the respondent to open up the sewer area.

10 The evidence includes photographs taken by Mrs Timmins in February 2010 (Ex A). Those photographs confirm the conclusion in the 2010 Application that at that time there was a Bougainvillea and other vines growing along the boundary on Mr Park's property. In places the vines were growing over panels of corrugated iron which was leaning towards Mr Park's property. The view confirmed that those vines, and the corrugated iron fence panels, have now been removed, and there are holes where fence posts have been removed along the side boundary. In parts along Mr Park's side of the boundary there were remnant roots which appeared to have been severed, and there was no indication that any new growth on any part of the remaining parts of the vines.

11 There was no evidence of leaking effluent on the site view.

12 The hearing was adjourned to enable consideration of the jurisdictional issue raised by the commencement of the amending Act, and resumed by telephone on 26 October 2011. On that occasion Mrs Timmins and Mr Park made submissions on whether the vines had caused or are causing damage to the sewer, the pathway or the fence. Mrs Timmins relies on the statements of two plumbers that the roots have gone into the sewer pipes and blocked them; that it is clear from the hole dug by Mr Sam Park that there are roots running underneath the pathway, and there is a drop down one side; and that Mr Sam Park had taken down the dividing fence when the vines were removed. Mr Jim Park stated that the damage to the sewer was not only because of the vines but because of movement, and the earthquake; the pathway had been constructed as a concrete topped brick path and the roots would not affect it at the depth that they were; and that the fence had been constructed of chicken wire and metal panels to support the vines at around the time the house was constructed about 30 years ago. Mrs Timmins confirmed that Mr Sam Park had built his house about 30 years ago; and at that time there was a timber paling fence which he removed.

13 The first issue to be determined is whether the Court has jurisdiction. Section 7 of the Act provides:

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.

14 A "tree" is defined in s4:

tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations.

15 The amendment to the Regulation prescribing "any plant that is a vine" as a "tree" for the purposes of the Act came into effect on 26 May 2010, and this application was lodged on 23 June 2011. Section 7 is expressed in the present tense, and has been held to require that the tree the subject of the application be in existence at the time an application is made under the Act: Robson v Leischke at [144]-[145]. The limitation on claims made for compensation for damage caused before the application is made with the Court is that imposed under the Limitation Act 1969, namely six years: Moroney v John [2008] NSWLEC 32. There are no transitional provisions in the amending legislation or the Regulation that would require a reading of s7 following the commencement of the amending Act other than that it requires that at the time an application is made there be a "tree" to which the Act applies. Subject to the discussion below concerning the consequences of removal of the vines, I am satisfied that this application was made in relation to vines which were at the time of application "a tree to which this Act applies".

16 Based on the photographs in exhibit A, and the view, the vines that were present along the boundary fence at the time of the hearing in the 2010 Application, and referred to in paragraph [8] of the earlier decision, have been removed. Mr Sam Park's written statement indicates that that occurred "immediately" after the determination of the 2010 Application, that is, before this present application was made. At the resumed hearing Mr Jim Park stated that this occurred a week or so after the hearing of the 2010 Application. Based on this evidence, and given that the amending Act commenced 3 days after the determination of the 2010 Application, I am satisfied that the vines were removed after the determination of the 2010 Application, and that it is likely that this occurred after the amending Act commenced.

17 Section 4(4) applies to the removal of a tree in certain circumstances:

(4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

18 The use of the past tense in s4(4) in the phrase "gave rise to" suggests that it is directed at the situation where the sequence of events is that damage occurs, an application is made under Part 2, and then the tree is removed. That interpretation would preserve the Court's jurisdiction to make orders in circumstances where the requirement in s7 that the tree still be situated on land would otherwise not be met. In this matter the vines were removed before this present application was made.

19 It is not necessary to decide whether s4(4) applies only to removal of a tree that occurred after the present proceedings (rather than the 2010 Application) were commenced. In Robson v Leischke [2008] NSWLEC 152 Preston CJ held that while s7 requires that the tree still be situated on land at the time the application is made, it does not mean that the whole of the tree still needs to be situated on the land:

147...The concept of a 'tree' is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land. The concept of a tree also includes a tree that has died.

20 Based on the view, there remain parts of the trunk and root system of the bougainvillea on Mr Park's side of the boundary. I am satisfied that at the time of application, there is a "tree" as defined in s4 to which the Act applies that is situated on adjoining land.

21 Section 7 enables an application to be made in relation to "damage to property on the land". That includes damage to fences, paving or other structures: Robson v Leischke at [162]-[167]. The damage must be damage "as a consequence of the tree".

22 Section 10(1)(a) of the Act provides that the Court cannot make an order under Part 2 unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated. While there was disagreement as to whether Mrs Timmins had specifically requested compensation, the evidence of Mrs Timmins and Mr Jim Park and the written statement of Mr Park confirm that at least since 2008 there have been discussions between the parties, at times heated according to Mr Jim Park.

23 Section 10(1)(b) requires that the applicant has been given notice of the application. Mr Park was given notice of the application, and responded in writing on 4 August 2011.

24 Section 10(2)(a) requires that the Court be satisfied that one or more of the four conditions specified are met:

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

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

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

25 In asking whether the tree has caused damage, the relevant principles are that the tree need not be "the" cause of damage, but may be only "a" cause, and that it is not relevant to identify whether any person is at fault: Robson v Leischke [2008] NSWLEC 152 at [179], [184]. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Craig J discussed the obligation created by s10 for the Court to be satisfied of the causal nexus between the tree the subject of the application and the damage claimed. This requires an assessment of all the evidence before the Court. At [38] Craig J held that s10 of the Act requires the Court to be "satisfied" of the causal nexus between the tree and the damage claimed, and held:

That will require an assessment of the totality of the evidence adduced before me. When considering that evidence, it will, nonetheless, require a "preponderance of probability" that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section.

26 The first element of the damage claimed relates to the sewer pipes. The evidence as to that damage comes first in the form of a tax invoice from N H Cummings & Son Pty Ltd dated 8 December 2008 for work carried out with a high pressure water jet blaster to "remove blockage to sewer pipes". That document notes that the sewer pipes "are in good condition except around the shaft area", that the sewer shaft needs renewing, and that after that is replaced "will only need the sewer cleaned about every 6 months with the water jetter to remove tree roots". Moore SC and Hewett AC observed effluent seepage for which they concluded there was only one logical source, namely the sewer line on the applicant's property. It is not clear from their findings whether or not they were satisfied that the leakage from the sewer line was from the sewer riser or from another part of the sewer line. The evidence of Mrs Timmins was that she had observed the lid of the sewer riser raised; together with the report from December 2008 that the sewer riser needed replacing, that would support a conclusion that there may have been some damage to or defect in that part of the sewer. However, the evidence is that in December 2008 the pipes themselves were in good condition, and that the blockage then present had been removed. It was common ground that the leakage observed by Moore SC and Hewett AC in May 2010 has stopped.

27 I am satisfied based on the invoice of N H Cummings & Son Pty Ltd that there has been a blockage of the pipes by tree roots which required intervention in December 2008 and, based on the view and the photographs that, given the location of the sewer and the absence of other vegetation in the immediate vicinity, that the vines on the respondent's property were a cause of that blockage. I am satisfied that s10(2) is met in relation to the blockage cleared in December 2008.

28 Section 12 of the Act lists the matters that must be considered before an order can be made:

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

29 The evidence of Mrs Timmins that she was alerted to the problem of a leaking sewer by Mr Park and that she responded by having the plumber investigate and clear the blockage in December 2008, is confirmed by Mr Sam Park's written statement in which he states that he advised Mrs Timmins about the leaking sewer, and that she had advised him in 2008 that she had had a plumber look at the pipes. I am satisfied that it was appropriate for Mrs Timmins to engage a plumber to clear the blockage, and that it is appropriate to require the respondent to contribute to the cost of doing so. In considering whether he should be required to pay the full cost, it is relevant in my view that the sewer is at least 40 years old and, being earthenware, it is likely that there were some pre-existing joining defects or crack that may have facilitated the entry of roots. The Court has preciously ordered apportionment in such cases, see for example Hill v Dance [2007] NSWLEC 642. In this matter it is appropriate to require the respondent to pay half the cost of clearing the blockage, $425.

30 In relation to the claim of damage to the sewer pipes themselves, the evidence before me is limited to the defect in the sewer riser observed in December 2008, and the leakage of effluent observed in May 2010 which, it was common ground, was present for some and time and has now stopped. There is no present evidence of any ongoing problems. I am not satisfied that the evidence establishes that any presence of roots from the vines has caused damage to the sewer pipes themselves. The vines have been removed and poisoned and are unlikely to cause damage in the future. I am not satisfied that s10(2)(a) is met in relation to the claimed damage to the sewer pipes, and accordingly no order can be made in relation to that part of Mrs Timmins' claim.

31 The second element of damage claimed relates to the concrete path running along the side of Mrs Timmins' house above the sewer line. The photographs taken on 27 February 2010 (Ex A) and 15 January 2011 (Ex B) show roots in the section where Mr Sam Park dug up the concrete, and cracks along parts of the concrete, including cracks running out from the sewer riser. On the view there was cracking observed in 15 of the 21 concrete sections. There are three small trees at the top of the pathway near the street frontage. The concrete path was constructed using a relatively thin layer of concrete without reinforcing resting on a foundation of piled bricks; Mrs Timmins' evidence was that the pathway was constructed by her husband around the time of construction of the house some 40 or so years ago, and that the bricks had been selected for their porous nature so that the flow of water would not be impeded.

32 The evidence of roots underneath the path would support a conclusion that the vines have contributed to the damage to the concrete pathway, however other contributing factors would be the age of the pathway, the method of construction using a thin layer of concrete on loose fill, and the slope both down from the street and across the property down to Mr Park's property. The jurisdictional requirement of s10(2)(a) is met in relation to the pathway, and the factors in s12 of the Act must be considered.

33 The quotation provided by Elitecrete dated 14 June 2010 for replacement of 45 sqm of concrete including reinforcing is $4,500. I am satisfied that the vines were a contributing factor to the cracking of the concrete pathway, and that some damage was caused by the removal by Mr Sam Park of part of the concrete to investigate the problem. Given the age and method of construction of the pathway, however, I am not persuaded that it is reasonable for the respondent to be required to pay for what would, on the specifications provided, be a significant upgrading of the pathway were the work itemised in the quotation be undertaken. In my view it is reasonable that the respondent contribute 20 percent of the cost of replacement, with quotations to be obtained for that work as specified in the orders.

34 In her Tree Dispute Claim Details Mrs Timmins requested an order that the respondent repair the fence at his cost. It was common ground that there had been a paling fence some 30 years ago which was removed by the respondent when he built his house, and that he had at that time constructed a fence of chicken wire between steel posts supplemented by metal panelling. The photographs taken in February 2010 indicate that the fence was at that time in considerable disrepair, and support the evidence of Mr Jim Park that the removal of the vines required removal of the fence. Given the age of the fence and its method of construction, and the age of the fence that it replaced, even if I were satisfied that s10(2) is satisfied it would not be appropriate in the exercise of discretion under s9 of the Act to make any orders for replacement of the fence.

35 The orders of the Court are:

1. The respondent is to pay the applicant the sum of $425 within 30 days of the date of these orders.

2. The applicant has 30 days to obtain and provide to the respondent 3 quotes for the replacement of the concrete pathway.

3. In that time the respondent may choose to obtain his own quotes. In doing so the applicant is to provide all reasonable access to any tradespeople engaged by the respondent for the purpose of quoting.

4. The respondent has 7 days from the receipt of the quotes from the applicant and any sought by him to choose a contractor to carry out the work, and to inform the applicant. If this is not done within the 7 days the applicant is to choose the contractor and to advise the respondent within a further 7 days of the contractor who is to carry out the work.

5. The applicant is to engage and pay for the nominated contractor.

6. The respondent is to reimburse the applicant 20 percent of the cost of the works within 30 days of the receipt of a tax invoice for the completed works.

7. The replacement of the pathway is to be completed within 90 days of the latter of the dates specified in order 4 otherwise order 6 lapses.

Linda Pearson

Commissioner of the Court

Decision last updated: 01 November 2011