Land and Environment Court New South Wales

• Medium Neutral Citation: Whatham v Ellams & anor [2011] NSWLEC 1382
• Hearing dates: 6 December 2011
• Decision date: 21 December 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons, compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr B Whatham (Applicant); Mr J Ellams (First respondent); Ms J Maple (Second respondent)
• Representation: Mr B Whatham (Applicant in person); Mr B Gelonesi (Solicitor for the Respondents); GP Legal (Respondents)
• File Number(s): 20812 of 2011

Judgment

1 COMMISSIONER: This is an application under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mona Vale against the owners of trees growing on an adjoining property.

2 The applicant is seeking the removal of all trees growing along the southern boundary of the respondents' boundary on the basis that they have caused, and will continue to cause, damage to elements of his property. If any replacement planting is to be carried out, the applicant seeks orders for those plants to be limited to species with 'non-invasive' roots and which only grow to fence height; these orders are sought to prevent future damage to drainage pipes. The applicant is also seeking a contribution from the respondents of 50% of the cost of rebuilding a brick retaining wall along the western end of the northern boundary of the applicant's property. The applicant contends the wall has been damaged as a result of roots from the respondents' trees breaching a drainpipe leading to leakage of water, which in turn has led to a failure of mechanical support for the wall.

3 The respondents contend that none of the trees on their property have caused any damage to the applicant's property. With respect to the crack in the boundary wall, the respondents state that it was present when they purchased their property and before they planted any of the trees. In their view, the trees make a significant contribution to the natural landscape and scenic value of their property and soften the visual impact of the nearby wall of the applicant's dwelling.

4 The trees along the fence are as follows (listed from west to east): T1 - a mature Cootamundra Wattle; T2 - a semi-mature Lillypilly; T3 - a small Grevillea; T4 - small bottlebrush; T5 - semi-mature Callistemon; T6-11 - young Leyland Cypress. There is a mature Koelreuteria sp (Golden Rain Tree) and a young Eucalypt set back some metres from the dividing fence.

Relevant background

5 The applicant purchased his property in 1979 and estimates the house to be about 40 years old. About 25 years ago, the applicant had the north-eastern corner of his house underpinned because of structural problems caused by the backflow of drainage pipes.

6 The respondents purchased their property in 2006. Two or three years ago they installed an in-ground pool about four metres to the north of the brick wall. Development consent for this and other works on the respondents' property required some landscaping to be undertaken.

7 The application includes several letters from the applicant to Pittwater Council from October 2006 to February 2009 regarding his concerns over several aspects of two development applications lodged by the respondents. The relevant concerns are about excavation for the pool within 2m of the dividing wall and the possibility of changes in moisture level and the loss of amenity and potential changes in moisture level arising from the planting of trees along the respondents' rear boundary.

8 In December 2007, Pittwater Council advised the applicant that it had adopted as interim, the revised Geotechnical Risk Management Map P21DCP-BC-MDCP083. The map identifies the applicant's property as subject to Geotechnical Risk. The letter states the requirement for this classification to be placed on the Section 149 Planning Certificate for the property. The notation reads in part:

"Geotechnical Hazard/ Risk:...a policy to restrict development of the land because of the landslide likelihood of geotechnical hazards including, but not limited to, landslide; rock fall; deep excavation; low bearing capacity soils.

9 At some stage, Council approved the removal of a Toona ciliata (Red Cedar) from the south-western corner of the courtyard on the north-western side of the applicant's dwelling. A rainwater tank occupies the position of the former tree. Another nearby Cedar had a major trunk removed; it has subsequently regrown and appears as a mature tree. Stormwater pipes run diagonally across the courtyard from the northeast to the southwest. The majority of the courtyard is paved and constructed on fill.

10 In 2008 the applicant removed a Mulberry tree from the grassed yard on the north-eastern side of his property.

11 In late 2009/early 2010, the applicant noticed a sunken section of paving about mid way along the paved pathway along the northern boundary of his property; this is identified as D4 in the application. This path is about 1m below the level of the north-western courtyard. Excavation of that section revealed a leaking terracotta storm water pipe; photographs show a root growing in the vicinity of a joint in the pipe; the applicant contends the root had dislodged the seal. The pipe shown in the photograph was about 4.5m to the east of the brick wall at the end of the path. The applicant contends the root came from T2, about 2.5m away.

12 In May 2010, the stormwater and sewer pipes along the northern boundary of the applicant's property were replaced with PVC. The plumbers also excavated either side of the return of the brick wall and around the north-western corner of the applicant's dwelling. Sewer and storm water pipes were also replaced in the north-western courtyard. In addition, a down pipe at the south-western end of the applicant's dwelling was disconnected; the terracotta pipes into which that down pipe was connected, and which run along the western wall of the dwelling, remain in place.

13 My understanding of the basis of the applicant's contentions is that a root from T2 caused the displacement of a joint in the storm water pipe, which resulted in a leak, which then resulted in expansion of the reactive soil combined with a loss of soil strength, which then led to settling of the corner of the house and the crack in the brick retaining/ dividing wall. He is concerned that the presence of the trees will exacerbate changes in moisture content in the reactive soils. He does not want to proceed with underpinning works until the trees have been removed.

The damage

14 There are several parts of the applicant's property that the applicant contends have been damaged, or may in the future be damaged, by the respondents' trees. The diagram in the application identifies each of these elements of the applicant's property.

15 D1 is the brick retaining wall along the western end of the northern boundary of the applicant's property. The lower part of the wall is double brick and retains about a 500/600mm depth of soil above the level of the respondents' property. There are no weep holes in the wall. The top portion is single brick. The applicant contends that in February 2010 he noticed a crack in the single brick part of the wall. This was after the pipes had been replaced. This crack is some 3-4m from the north-western corner of the applicant's dwelling and at least 8m from the point at which the root was found near the drainage pipe. The nearest tree is the Cootamundra Wattle - some 3m away.

16 D2, D3, D5-8 on the diagram in the application are all in the vicinity of the north-western corner of the applicant's dwelling, however there is no specific description of some of the identified areas of damage.

17 This damage includes a horizontal crack in the mortar between the brickwork (D2). A photograph shows this to be above the second course of bricks commencing at the edge of the opening of a double doorway. The applicant states that he noticed this crack in April 2010 and comments that this crack is indicative of the settling of the corner of the house. He further states that about 6 months after the pipes were replaced, and following drying over summer, there was further cracking in this part of the house. Photographs show a crack between the mortar and a crack through one brick under a top floor window on the north-western portion of the dwelling and a crack between a brick and a tile midway along the bottom of the step of the double doorway below that window (D6). This, he says, is evidence of further settling.

18 D7 and D8 indicate cracks in the internal plasterwork in the top storey room on the north-western corner of the applicant's dwelling. There is a diagonal crack in the ceiling arising from the cornice near the fire place and another crack starting from the lower southern corner of the window mentioned above.

19 At the hearing, I was also shown a crack near a vent in the cavity wall under the house and below the double doorway. The applicant stated that this crack had closed up with the recent rain.

20 D3 and D5 appear to indicate areas of junctions between replaced pipes. The application raises concerns over future damage that may arise as a result of root entry or by roots growing between the closely located pipes causing them to lift and break.

21 D9 and D10 include the entire northern wall of the applicant's dwelling. D9 refers to the impact of trees 1-11 producing what the applicant describes as " a differential moisture content under the house foundations by reduction in moisture level under the house north wall. Causing variations in foundation support, likely to produce further serious damage to D9 to my house and boundary wall, particularly with this mass of roots from a concentration of trees deliberately shoulder to shoulder and so close to obliterate the house. Wall has 3 story [sic] equivalent height of brick and heavy chimney close to damaged corner. Too high and heavy to be subject to any destabilising influence. Engineer evaluating damage advised the need to fix tree threat at border before carrying out repairs to building due to this differential support problem... D10 is identified as a potential fire risk; this was not discussed at the hearing.

22 D11 in the application is identified as a risk of potential damage to a window as a result of branches touching the window in windy weather. This was not pressed at the hearing.

23 In his supplementary information, the applicant states that drainage changes upslope from his property, (not the respondents' property) may also contribute to future damage to his property. This is beyond the scope of the Court's jurisdiction in this matter.

Engineers' reports

24 In April 2011, the applicant obtained an engineer's report from Censeo Pty Ltd - Engineers, Building Consultants and Project Managers, prepared for Suncorp Metway Insurance Limited, the applicant's insurers. The stated purpose of the report was to " provide a report, scope and method of repair for the underpinning of the home and retaining wall". Amongst other things, the report notes the conversation between the applicant and the engineer including statements made by the applicant including references to the root, leaking pipe, the nearby trees and the reactive soils. Parts of those reported comments are given below:

One year ago he discovered that large tree roots had broken a stormwater pipe at the rear of the property. This pipe has been repaired and it is working properly;

He started noticing the cracks in the rear wall before he realised that there was a leaking pipe;

He believes the pipe was leaking for a long time and is responsible for the subsidence of the rear left corner of the property;

After the pipe was repaired numerous cracks appeared at various locations in the rear and left sections of the external brickwork;

25 The inspection notes previous repairs on the eastern wall; a crack and previous repairs on the northern wall; and cracking and previous repairs on the northern part of the western wall indicating settlement of the north-western corner of the building. The report notes that none of the walls have articulation joints or allowance for differential foundation movement. The report also notes the generally very good condition of the dwelling.

26 The report finds that due to the proximity of the leaking pipe to the damage, the leak is responsible for the damage. The report states " it appears that this pipe has been leaking for some time adding extra moisture to the ground and exacerbating the different movement in this section of the house resulting in the cracking claimed for." The report also considers that the proximity of the neighbour's trees is such that they will likely continue to interfere with the functions of the pipes if not dealt with in an appropriate manner. The report recommends the installation of a root barrier to a depth of 1m at a distance of 1m from the northern wall. The report states that underpinning is not necessary.

27 The applicant rejects the recommendation of a root barrier as he considers it could destabilise the trees thus leading to damage or injury.

28 In May 2011, the applicant engaged another engineer from MtK Consulting to investigate the north-western corner of his dwelling and the brick wall (D1). The report makes the following comments: the surface of the ground in the vicinity of the external footing exhibited shrinkage consistent with a highly reactive material; the western paved area is constructed on a filled sub-grade; drainage has been attended to by a plumber; differential movement of the footing is apparent; the internal cracks occurred after the plumbing works had been carried out.

29 The report notes that whilst the constructed footing system would not comply with current standards, the effect of moisture concentration is evident. The report recommends the installation of shallow underpinning to minimise the effects of the interaction with the sub-grade of the footing as well as replacement of existing clay pipes with PVC. The report also recommends removal and reconstruction of the boundary/ retaining wall with adequately engineered footings. The report makes no mention of the neighbours' trees.

30 Both reports make reference to AS2870 : Residential Slabs and Footings, however, neither reports give the date of the standard. The latest version is 2011; the applicant has included excerpts from the 1996 version. It is unknown whether that material has been amended or updated in the current version. The material submitted includes information on what might contribute to abnormal moisture conditions, what constitutes a reactive site, as well as an 'Informative' appendix on 'Performance Criteria and Foundation maintenance'. The latter includes the often cited but generally impractical suggestion about planting distances of trees near buildings.

The Court's jurisdiction

31 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. Given that the applicant is, in part, concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances. Should any of the tests in s 10(2) be met, s 9 of the Act provides the Court with a degree of discretion in the orders it may make.

Findings

The boundary/retaining wall (D1)

32 On the evidence before me, I am not satisfied that any of the trees subject to the application are responsible for the crack in the boundary wall. The first respondent's evidence is that the crack existed when the respondents purchased their property some 5 years ago. Even if I accepted the applicant's evidence that he noticed the crack after the replacement of the drainage and sewer pipes, there is no evidence that the crack is due to root growth. It would seem to me that there are many possible contributing factors including: the reactive soil; settlement of the fill retained by the wall - especially after excavation and replacement of pipes, and the decomposition of roots from the removed Cedar; the long term pressure of retained soil and water; and the absence of weep holes in the wall.

33 Therefore, on the basis that the applicant has not demonstrated the nexus between the wall and any of the trees, the Court has no jurisdiction to make any orders with respect to this element of the application; this includes the payment, by the respondents, of 50% of rebuilding the brick wall.

Current and future damage to the north-western corner of the applicant's dwelling

34 A photograph in the applicant's evidence shows a long secondary woody root coming from or going under the dividing fence. The root appears to have a similar diameter from one end to the other. Another photograph shows smaller secondary roots in the vicinity of a join in the clay storm water pipes. The photographs are dated 18 February 2009. The first respondent's affidavit at [5] states that the trees on his property were planted a long time after 2006; however, it is unclear as to whether T1 and T2 had been planted by previous owners. The applicant contends that the roots came from T2, as it is the closest tree. The applicant states that this tree blew over and when it was propped up and heavily watered, it grew this large root.

35 The respondents' position is that the root may have come from the Mulberry tree that was removed from the north-eastern courtyard of the applicant's property.

36 The root was not identified. While is not entirely clear from the evidence as to when the Lillypilly was planted, in my experience, it would seem unusual for such a large and long root to develop from a relatively small Lillypilly in a relatively short time. It is possible that the root came from the Wattle, or Koelreuteria on the respondents' property or indeed, from the Mulberry on the applicant's property. There was no evidence as to whether the root was alive or dead.

37 Notwithstanding the uncertainty as to the origin of the roots shown in the photographs, it is possible that they may have come from one or more of the respondents' trees. There is also no reason to disbelieve the applicant's statement that the roots had disrupted the rubber rings in the pipe joins. However, it is impossible to know whether the roots created the leak, or whether movement of the pipes due to reactive soils created a gap into which the roots grew. However, in putting the applicant's case at its highest, I am prepared to accept that roots from the respondents' trees may have contributed to the damaged storm water pipes.

38 Therefore as one of the tests in s 10(2) is met, the Court can consider what, if any orders should be made. This requires an assessment of the discretionary matters in s 12 of the Act.

Discretionary matters

39 The relevant clauses in s 12 are as follows:

(a) The trees in contention are located within a metre of the dividing fence and are within 1.5-2m from the applicant's house.

(d) The trees make some contribution to biodiversity.

(e) The respondents value the trees as they screen part of the large expanse of brick wall and reduce reflected heat.

(h)(i) Anything other than the respondents' tree/s. As stated above, there was a Mulberry tree on the applicant's property and there is still a cedar growing in the western courtyard; the identity of the roots in the photograph is unknown. The soil is a reactive clay. The original stormwater and sewer pipes were clay and have now been replaced with PVC; the original pipes were at least 40 years old. The majority of the cracking on the north-western corner of the dwelling occurred after the replacement of the pipes. The stormwater pipe from the south-western corner of the house has been disconnected which may have altered to moisture regime on the western side of the house. Periods of alternating wet and dry weather would also contribute to the reactivity of the soil. The Censeo report states that the walls of the house do not have articulation joints or allowance for differential foundation movement. There is water moving onto the site from upslope.

Conclusions

40 Even though roots from the respondents' trees may have directly or indirectly have contributed to a leaky storm water pipe, the evidence seems to suggest that the pipe was leaking for some time before the root was discovered. The Censeo report relies on the applicant's statements about the cause of the leaking pipe and finds the cracks to be consistent with settlement of the north-western corner. The author of that report did not undertake any investigation for the presence of roots. The report concludes that the damage is due to the leaking pipe and recommends the installation of a root barrier to control any future interference by the roots with the functions of the pipes. The MtK report does not refer to the respondents' trees but notes that the drainage has been attended to by the plumber and that the internal damage was observed after those plumbing works. The applicant states that the majority of the cracks developed after the replacement of the pipes.

41 On the evidence before me, I find that it is highly likely that the subsidence and cracking of the north-western corner of the applicant's dwelling is due to changes in moisture content of a reactive clay soil and resulting shrinkage following replacement of pipes that had been leaking for some time. It is also possible that settling of excavated material may have contributed to the subsidence. While the applicant found some roots in and around one part of a storm water pipe, there is no conclusive evidence that the roots were the primary cause of the leak or that the roots originated from the respondents' property. Similarly, the reactive nature of the soil may have had an effect on the integrity of the 40 year old clay pipes. Other possible contributing factors are covered in [38] (h)(i) above.

42 I also find that now the pipes have been replaced with plastic, the likelihood of any root incursion is greatly reduced. While I accept the applicant's submission that roots may in the future grow between the closely spaced pipes, there is no evidence to indicate that this is likely to occur in the near future, if at all.

43 Therefore, I consider there is no basis upon which I can order the removal of any of the trees subject to this application.

44 As a consequence of the forgoing, the Orders of the Court are:

(1) The application is dismissed.

____________________________

J Fakes

Commissioner of the Court

Decision last updated: 13 January 2012