Land and Environment Court New South Wales

• Medium Neutral Citation: Samuel v Euston [2012] NSWLEC 1094
• Hearing dates: 10 February 2012
• Decision date: 01 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; removal refused, pruning refused, part payment of compensation ordered, replacement of a section of sewer pipe ordered

• Catchwords: TREES [NEIGHBOURS] Damage to property - sewer; risk of injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: W & R Samuel (Applicants); G & J Euston (Respondents)
• Representation: W Samuel (Applicant in person); G Euston (Respondent in person)
• File Number(s): 21023 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 owners of a property in Dapto against the owners of trees growing on an adjoining property.

2 There are two trees in contention. Both are Ficus macrocarpa var hillii (Hill's Weeping Fig) growing along the southern boundary of the respondents' backyard. Tree 1 (T1) is located in the western corner of the property, to the west of Tree 2. They are two of a number of figs growing along the western and southern boundaries of the respondents' property.

3 The applicants are seeking the removal of T1 for the following reasons: roots from the tree have caused continual blockages and damage to the sewer system requiring ongoing expense; and, if any large, unstable branches fall, they may cause major damage to property or injury to anyone in the garden. Orders are sought for the pruning of overhanging branches from T2 on the basis they may cause damage or injury should they fall. The applicants contend that branches have fallen from both trees. They say they are particularly scared to use their garden should a large stem of T1 fail.

4 The applicants are also seeking compensation of $1968 for plumbing costs they say are the result of roots blocking the sewer.

5 The respondents do not wish to remove the trees, but are prepared to prune them as they have in the past as long as the costs of pruning are shared. The respondents are prepared to pay 50% of the relevant plumbing costs incurred by the applicants, an amount they say is $757.25 given that some items in the plumbing invoices are not related to the sewer. They are also prepared to pay for the replacement of the sewer pipes with PVC.

6 The applicants do not want to replace the pipes, as to do so would require the digging up of some paving and disruption to their backyard.

Relevant background

7 The on-site hearing commenced on the applicants' property. The pipes said to have been blocked are at the rear of their property.

8 According to the evidence, both written and given orally, the applicants purchased their property from a family member in November 2010. The applicants were aware of previous problems with the sewer system.

9 According to the respondents, they attempted to resolve the problems with the previous owner by offering to pay for a plumber to replace the pipes; however, this offer was refused. The respondents also say they received permission from Wollongong City Council to prune overhanging branches from the trees and then engaged arborists to carry out the work.

10 The plumbing invoices are dated 23/5/10, 1/6/10, 16/9/10, 27/10/10, and 9/3/11. While the 2010 invoices appear to predate the applicants' ownership of the property, they are made out to the first respondent.

11 The respondents say they were only made aware of the latest blockage when they received the application under the Trees Act.

12 On 25 July 2011, the respondents applied to Wollongong City Council for an inspection report under council's Tree Management Control Plan. Five trees were inspected including T1 and T2. The very brief assessment sheet allows removal of T1. The reasons given are "Dispute with neighbour. Neighbour wants tree removed (note: TMO 2011/939 for pruning given to neighbour)" A handwritten comment says, "Poor spec". For T2 approval is given for pruning - the types reasons being given as "Same as above"; the handwritten comments include 'close to dwelling & overhangs neighbours' property; future stubs if left to mature".

13 The respondents engaged Mr Warwick Varley, a consulting arborist, to assess the trees. Mr Varley concluded that while T1 does have a bark inclusion between its two main leaders, there was nothing to indicate its likely failure. He recommends the retention of both trees and the pruning of some dead wood and old stubs, although he says these do not present a risk to the applicants. He also makes comments that the issue of root intrusion into the sewer could be mitigated but gives no recommendations as to how this could be done.

Jurisdiction and findings

14 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees concerned has caused, is causing, or is likely in the near future to cause, damage to the applicants' property or is likely to cause injury to any person. The tests must be applied to each tree. If any of the tests are met, the Court then has the jurisdiction to consider what, if any, order should be made.

15 Dealing first with T2, although a small portion of the canopy overhangs part of the applicants' property, there is no evidence to satisfy the Court that this tree has caused, or is likely in the near future to cause damage to the applicants' property, or injury to anyone. 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future.

16 Therefore, as s 10(2) is not satisfied for T2, no orders will be made for any interference with this tree, and this part of the application is dismissed. However, this does not prevent the respondents from undertaking any pruning they wish to under the permit obtained from Wollongong City Council.

17 With regards to T1, I agree with Mr Varley that despite the bark inclusion, there is nothing to suggest likely failure in the foreseeable future. I am not satisfied that there is any evidence to make Court orders for either removal of the tree or any pruning at this stage. As for T2, this does not negate the approval obtained from Wollongong Council.

18 I am satisfied that the roots from one or more of the respondents' trees have blocked the applicants' sewer and, in this regard, s 10(2) is satisfied and orders can be made. However, before doing so, relevant matters under s 12 must be considered. Of importance here are the trees' contribution to privacy, landscaping and noise protection for the respondents' amenity (s 12(b3)). Also relevant are things other than the trees that may contribute to the damage and the actions of the parties (s 12 h).

19 The damaged pipes are clay, not PVC, and therefore more likely to be susceptible to root incursion. The Court has dealt with a number of cases involving blockages of older sewer pipes and the apportionment of costs. The applicants knew about the problems with the sewer when they purchased the property, and I am satisfied they knew about the respondents' previous offer to replace the clay pipes with PVC. The respondents have offered to pay half the costs of the sewer clearing costs and the full cost of replacing the sewer pipe from the point where it joins the main to where is goes beneath the applicants' dwelling. I consider this very reasonable. However, on the basis of the applicants' failure to notify the respondents of the last blockage, a further discount of 10% is appropriate. The applicants resist this offer because they don't want the inconvenience of undertaking the works; in the circumstances, this seems unreasonable given the potential for ongoing blockages. Even if T1 is removed, it is likely that roots from other trees could move into the damaged clay pipes and the problem would recur.

20 In this matter, I am content to make the respondents' alternative orders. However, given the applicants' prior knowledge of the offer and their resistance to it, the applicants will be responsible for the rectification of surface treatments such as paving after the completion of the installation works. To facilitate this, an order will be made for the plumber engaged to do the installation to remove the surface treatment in a way that minimises any damage to it, and enables its reinstatement, by the applicants, at the completion of the works. Therefore the Orders of the Court are:

(1) The application to remove Tree 1 is dismissed.

(2) The application to prune Tree 2 is dismissed.

(3) The respondents are to reimburse the applicants a sum of $605.80 within 30 days of the date of these orders.

(4) Within 90 days of the date of these orders, the respondents are to engage and pay for a plumber to replace the clay sewer pipes on the applicants' property from the point where it joins the main line to the point where it enters the north-eastern corner of the applicants' dwelling. The works are to include the removal of surface treatments such as paving in a way that minimises damage to it and enables its reinstatement at the end of the works. The reinstatement of surface treatment is to be the responsibility of the applicants.

(5) The applicants are to provide all reasonable access for the purpose of quoting and the carrying out of the works on two working days (verbal) notice.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 19 April 2012