Land and Environment Court New South Wales

• Medium Neutral Citation: Ambour v Micdomjon Pty Limited [2012] NSWLEC 1041
• Hearing dates: 13 February 2012
• Decision date: 24 February 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; compensation ordered

• Catchwords: TREES [NEIGHBOURS] compensation for damage to sewer; issue of notification; apportionment
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Stanberg v Adams [2010] NSWLEC 1129; Black v Johnson (No 2) [2007] NSWLEC 513
• Category: Principal judgment
• Parties: J & M Ambour (Applicants); Micdomjon Pty Limited (Respondent)
• Representation: Applicant: Mr A Hourigan (Barrister); Respondent: Mr S Boesen (Solicitor); Applicant: Walker Legal & Conveyancing; Respondent: Shane Boesen Solicitors
• File Number(s): 21024 of 2011

Judgment

1 COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Taree against the owners of an adjoining property.

2 The applicants are seeking orders for compensation of a sum of $8,423.25 for the replacement of a length of sewer and concrete pathway they say was necessitated by incursion of roots from a tree or trees growing on the respondent's property. $6,553.25 is for plumbing work already completed. The remaining sum of $1,870 is for the replacement of the concrete path that was removed in order to carry out the plumbing work.

3 The applicants also seek orders for the respondent to pay the applicants' costs. In this regard, Commissioners do not have the jurisdiction to award such costs and a separate application must be made.

4 The respondent's property is a vacant block in a residential subdivision. Seven mature eucalypts on the respondent's property have been removed at a cost of $5,710. The respondent did this after the rectification works were completed.

5 The respondent's alternative orders are that the respondent will contribute 40% of the cost of the plumbing and concreting, the applicants are to reimburse the respondent 50% of the cost of removing the trees ($2,855), with the result being the respondent will pay the applicants $514.30.

6 The applicants reject the respondent's offer.

Actions of the applicant

7 The applicants purchased their block of land in about 1991/92 and built their dwelling in 1988. The PVC sewer system along part of their south-western boundary was installed at that time.

8 According to the statement of Mr Richard Walker, a plumber, some time in December 2010 or January 2011, he was engaged to clear the sewer line. Attempts to clear the line found the sewer blocked with tree roots. A camera confirmed the presence of roots. Excavation of the system found a large woody root growing under part of the sewer pipe leading from a toilet at the rear of the house. The pipe was cracked and roots were found in other parts of the sewer. In his opinion, Mr Walker found nothing to indicate that the plumbing was not installed in accordance with the appropriate standards, nor was it defective. In his view, the damage had been caused by the roots of one or more mature Eucalypts growing on the adjoining property. Photographs taken at the time show the large root and the damaged pipe. Other smaller roots are shown in the trench. The invoice for the completed work is dated 14 February 2011.

9 On 15 February, the applicants' solicitor wrote to the respondent notifying the company of the damage and enclosing the invoice and photographs. The letter states the applicants' demands to be reimbursed for the works and for the trees to be removed. The letter includes the following statement:

I am instructed that my client's [sic] have from time to time raised concerns with your company regarding the ingress of tree roots and other problems arising as a result of the proximity of the trees to the boundary and problems on their property. No time has any effort been made to prevent invasion of the tree roots onto our client's [sic] property not to prevent shedding of branches.

10 The letter, in exhibit C, attaches a letter sent by the applicants to the respondent on 13 April 2010. This letter states that they wrote to the applicant in 2009 although this letter is not included. The letter of 2010 draws the respondent's attention to a branch that fell from a tree and damaged a window screen. The applicants raise concerns about future damage to property or potential injury. The letter also mentions debris falling from the trees onto their gutters. They request removing or pruning of the trees. I note that no mention is made of root incursion.

11 From the applicants' material it appears that the respondent's solicitor wrote to the applicants' solicitor on 4 March, however that reply was not tendered. I can reasonably assume from the letter sent in reply by the applicants' solicitor on 18 March 2011 that the respondent had questioned the issues raised in the previous correspondence of 15 February. The 18 March letter refers to phone calls and emails alleged to have been made or sent by the applicants to the respondent's real estate agent regarding root intrusion as well as the falling of leaves and branches. None of this correspondence is in evidence.

12 In September 2011, the applicants submitted a sample of the large root beneath the sewer pipe to Mr John Ford, a consultant botanist who specialises in root identification. Mr Ford confirmed the sample as being a species of Eucalyptus. According to his report, he was also sent some photographs of other roots and asked to comment on their origin, including the possibility of them being from a conifer. Mr Ford said that he was unable to identify roots from photographs but could confirm their origin if he had a sample. The letter of instruction to Mr Ford is not included in the applicants' material.

The actions of the respondent

13 According to the affidavit of Mr Michael Mascolo, one of the company directors, the respondent purchased their property and other parcels of land in 2003. In February 2011 the company received the letter from the applicants' solicitor alleging the damage and seeking compensation. Mr Mascolo contends that this was the first notice the company had received regarding damage to the applicants' sewer and that they were given no opportunity to inspect the sewer or get competitive quotes. The affidavit refers to others engaged to determine the presence of roots and the advice received from them. He also contends that as the trees were present on the land when the applicants purchased their property they should have taken measures to ensure the pipes were installed to take account of the trees.

14 In May 2011, or thereabouts, the respondent engaged Mr Mark Searles, a consulting surveyor, to survey the respondent's allotment. The work also involved the excavation of a trench adjacent to the north-eastern boundary near the common boundary. The report dates 3 May 2011 states that three roots of " reasonable " size were found growing from the eucalypts across the boundary. The report also says that a " quite vigorous root system " was found coming from a conifer growing on the applicants' land onto the respondent's land. The report also refers to a Hunter Water Authority list of trees they say should be avoided near sewer pipes; both eucalypts and conifers are on the list. Mr Searle also suggests that the " invasion of correctly laid UPVC sewer pipes by tree roots would only occur if the pipes are damaged. Imperfections in the laying of the pipes could also allow invasion of tree roots ." Mr Searle states he was unable to inspect the pipes but claims that the roots from the conifer are very likely to have contributed to the damage. Photographs in the report show some roots in a trench but there is no plan identifying where the photographs were taken. Another photograph shows the relative location of the trees to the applicants' property.

15 The respondent also engaged an arborist, Mr Martin Hamilton to review the documents including the letters from the applicants' solicitor, the plumbing invoice, the application to the Court, Mr Walker's statement, Mr Ford's report and the survey report from Mr Searles. As the work had been completed he was unable to identify the roots or determine the cause of the blockage. Sections of Mr Hamilton's affidavit were struck out on the basis of inaccurate statements on root biology. In Mr Hamilton's opinion, it is reasonable to conclude that the pipe was defective in some way and this enable the exploitation of the pipes by roots. In his view, this may have been caused by inadequate compaction of soil after the pipes were installed. He also suggests that as the trees would have been there in 1988, a prudent plumber or builder would have installed a root barrier along the boundary to prevent the ingress of roots. He states that as the trees have been removed, no further action is required.

The hearing

16 The hearing took place on site. The extent and location of the plumbing works was evident from the section of concrete paving that had been removed. As the trees had been removed, there was nothing to inspect on the respondent's property. The location of a conifer that had been removed from the applicants' land was noted in relation to other structures and the sewer line.

17 Mr Walker and Mr Hamilton were on site and gave evidence.

18 Mr Walker confirmed what he had said in his statement of evidence. He was questioned as to whether the entire length needed to be replaced or whether a section could have been removed and replaced. In his opinion, the works undertaken were the most appropriate in the circumstances as only one seal was required. As I understand it, his evidence was that joining a new section to an existing pipe would have required rubber rings, something vulnerable to further root incursion. He also stated that roots appeared to have penetrated through the inspection points.

19 I drew the parties' attention to a CD of camera footage showing the interior of the sewer pipe that was included in the application. As no one on site knew where the footage was taken, it was deemed of no value to the proceedings and was not tendered.

20 Mr Hamilton was questioned on his stated opinion that a prudent plumber or builder should have considered the proximity of the trees and installed a root barrier, specifically on whether it was common practice in the late 1980s to install root barriers. Mr Hamilton was unable to comment as he was not an arborist at that time.

Submissions

21 The applicants submit that the respondent was aware of their concerns regarding the trees. On the issue of lack of notice, they contend that the works were urgent and there is no evidence that had notice been given it would have resulted in a different outcome. On that basis, no discounting of the amount claimed should be afforded the respondent. In regards to the removal of the trees, the decision to keep or remove them was at the respondent's discretion. Mr Hourigan disputes any involvement of the applicants' conifer in causing the blockage given its distance from the pipe, the presence of a structure between the pipe and the tree, and no evidence of conifer roots in the pipe.

22 Mr Boesen for the respondent presses the lack of notice about the damage and therefore of opportunity to inspect the problem or at least to get alternative quotes. In this he cites Stanberg v Adams [2010] NSWLEC 1129 where the Court noted the applicant's failure to advise the respondents in that matter of damage to a storm water pipe thus denying them the opportunity to take action.

23 Mr Boesen cites the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 regarding whether the tree was present before the structure was built and its relevance in considering who should pay for any rectification work. He contends that the trees were there when the applicants built their dwelling but they did not implement any measures to discourage or prevent damage to their sewer pipes. In his submission, his client's offer to pay 40% of the costs of rectification is on the high side.

24 Mr Boesen contends that the applicants' conifer could have contributed to the blockage as could a defective or leaking sewer. He also asserts that the applicants had not previously advised the respondent of likely damage to the sewer but the prior notification was limited to branches and leaves. He maintains that the applicants pressed for the removal of the trees and therefore they should share the cost of doing so.

Jurisdiction

25 In applications made under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This states that the Court must not make an order unless it is satisfied that any of the trees subject to the application has caused, is causing, or is likely in the near future to cause, damage to an applicant's property or is likely to cause injury to any person.

26 The 2010 review of the Act extended to Court's jurisdiction to consider applications where trees have been removed.

27 If any of the tests in s 10(2) are satisfied, the Court may make any orders it thinks fit, including the payment of compensation.

Findings

28 On the evidence of the photographs in the application and Mr Ford's statement, I am satisfied that a large woody root from one of the Eucalypts that was growing on the respondent's land damaged the applicants' sewer pipe. It is reasonable to assume that the damaged pipe provided access and opportunity for root growth within the pipe. I accept Mr Walker's evidence that he found no evidence of other defects or signs of incorrect installation of the PVC pipes.

29 Therefore as s 10(2) is satisfied, the Court must consider what, if any, orders should be made. However, before making orders, the Court must consider a number of discretionary matters in s 12.

30 Of relevance are the actions of both the applicants and the respondent. I agree with the applicants' position that there is insufficient evidence to find the conifer contributed to the blockage. It is entirely reasonable that roots would be found on the respondent's property in the vicinity of the tree. Mr Searles is clearly stepping outside his area of expertise with his assumptions regarding the nature of the roots and the cause of the plumbing problems, as he is neither a plumber nor an arborist.

31 In regards to the actions of the applicants in drawing the issue of potential root incursion to the notice of the respondent, there is no evidence to support this. It would seem to me that as their solicitor referred to emails and other correspondence it would have been possible, and appropriate, to include that material in the evidence. The only correspondence to prove prior notice is in regards to the falling of leaves and branches.

32 While I accept that a major blockage in a sewer system is something to be acted upon quickly, I consider it unusual that when such a large root was discovered, the respondent's agent was not notified immediately. The respondent was first notified at least six weeks after the event and the completion of the works. I accept the respondent's submissions that the company was denied the opportunity of having their agent or a plumber inspect the situation, discuss the options and or obtain an alternative quote. While the outcome may have been the same (on the face of it, Mr Walker's approach seems logical) that remains an unknown as there was no second opinion sought.

33 I find that the Tree Dispute Principle in Black v Johnson (No 2) at [15] is not especially relevant. This principle states:

15 The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration. If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and

the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

34 In this matter, it is clear that the trees were present when the applicants purchased their property and subsequently built their house. From the photographs, they appear to be self-sown remnants of the original vegetation. The sewer was constructed in PVC rather than clay pipes and therefore root incursion would be considered unlikely. The location of the sewer may have been determined by the location of the main. I agree with Mr Hourigan that the installation of a root barrier at that time would not have been common practice. Therefore, I don't agree with Mr Boesen that this principle assists his arguments regarding the sharing of costs of the rectification works.

35 With respect to the respondent's counter claim that the applicants should meet half the cost of removing the trees, I agree with the applicants' position that the removal of the trees was entirely at the discretion of the respondent. The respondent chose to remove all seven trees even though only three trees appeared to be relatively close to the applicants' dwelling. The respondent elected to remove the trees rather than consider an alternative such as the installation of a root barrier. While I accept that the applicants requested the removal of the trees, the respondent was under no obligation to do so. Therefore that element of the respondent's alternative orders is rejected.

Conclusions and orders

36 After considering the evidence, and having regard to failure of the applicants to notify the respondent or their agent in a timely manner of the damage, and therefore enable alternative options/ quotes to be obtained, I consider some discounting of the claim is reasonable. In my view, the respondent should reimburse the applicants 80% of the cost of the plumbing works already undertaken. With respect to the concreting to be carried out, both parties are to obtain additional quotes and the respondent is to reimburse the applicants 80% of the cost of the cheapest quote.

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

(1) The application is upheld in part.

(2) The respondent is to pay the applicants a sum of $5,242.28 within 30 days of the date of these orders.

(3) Within 30 days of the date of these orders, the applicants are to obtain an additional quote for the concreting, and should the company wish to, the respondent is to obtain one quote for the concreting. The parties are to exchange quotes. Should the respondent be content to rely on the quote already obtained by the applicants or elect not to take up the offer to arrange their own quote, the respondent is to notify the applicants in writing within 14 days of the date of these orders. If additional quotes are obtained, the parties are to nominate the preferred contractor. If no agreement is reached, the cheapest quote is to be selected by the applicants.

(4) The applicants are to engage and pay for the nominated contractor.

(5) The concreting works are to be completed within 90 days of the date of these orders otherwise order 6 lapses.

(6) The respondent is to reimburse the applicants 80% of the cost of the concreting works within 21 days of the receipt of a tax invoice for the completed works.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 25 February 2012