Land and Environment Court New South Wales

• Medium Neutral Citation: Bennett v Shaw [2012] NSWLEC 1136
• Hearing dates: 28 May 2012
• Decision date: 28 May 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; rectification works ordered

• Catchwords: TREES [NEIGHBOURS] Damage to a water pipe; possible injury
• Legislation Cited: Trees (Disputes Between neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Mr G Bennett; Mr R and Mrs K Shaw
• Representation: Applicant: Mr G Bennett (Litigant in Person); Respondent: Mr R Shaw (Litigant in Person)
• File Number(s): 20227 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an applicant pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Wentworth Falls against the owners of trees growing on an adjoining property.

2 The applicant is seeking orders for the prevention of root damage to underground services as well as for the removal of surface roots he contends are tripping hazards and therefore pose a risk of injury.

3 The respondents value the trees and do not wish to remove the surface roots as to do so could cause irreparable damage to the trees and necessitate their removal.

4 The trees are a row of five Fraxinus 'Raywood' (Claret Ash) growing on the eastern side of the respondents' property along the common boundary. Tree 1 is the most northerly tree in the row. The trees were established when the applicant built his house some 14 years ago. The respondents purchased their property about two years ago.

5 The damage alleged to have been caused by tree roots is the rupturing of a copper water pipe in 2008. The section of pipe is in the vicinity of Tree 2. When the area was excavated, a large woody root was found beneath the pipe. The uncontested evidence is that the expansion of the root caused the pipe to rupture. A plumber repaired the leak.

6 In 2011 there was another leak in the same section of pipe. It too was repaired.

7 For the purpose of the hearing, the applicant excavated the more recently repaired section of water pipe. The trench also revealed the nearby conduit in which the communications and electrical cables run. It was also clear that there is a large woody root beneath these sections of pipe and conduit. The expansion of the root has exerted pressure, particularly on the water pipe.

8 The applicant is concerned that ongoing root growth will lead to further damage to the water pipe and possibly to the cables in the conduit. Although no other problems have occurred to date, he is also concerned that roots from other trees may cause similar problems for other sections of the pipes and cables.

9 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 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future taking into consideration the facts and circumstances of the tree and the site.

10 In regards to the water pipe I am satisfied that the root, in all probability from Tree 2, has caused the past damage and could in the near future cause further damage. Therefore the Court's jurisdiction is enlivened for Tree 2.

11 The parties discussed possible options for managing the situation. The respondents are concerned that completely severing the root may cause stability or other problems for the tree but are content for the top of the root to be shaved by up to 50mm. It was also agreed that the trench should be extended to a distance of 2.5 m to the south of the nearby garden tap and widened to at least 200 mm either side of the conduit and water pipe in order to enable a new section of water pipe to be installed.

12 In order to minimise the likelihood of future damage, the new pipe is to be installed slightly above the current position and encased in a section of 100 mm diameter PVC pipe to act as a sleeve. The sleeve will create a void between the root and the pipe. The woody root beneath the conduit and water pipe is to be reduced in height by 50mm for a distance of 150 mm to the west of the conduit and 150mm to the east of the water pipe. This work is to be done using a sharp saw and chisels.

13 The parties agreed to share the cost of the plumbing works.

14 In regards to the potential for the remaining trees to cause similar problems, in the 14 years that the applicant has owned his property, there have been no problems with the electrical or communications cables and the break in the water pipe has occurred in the same section. There is no evidence to suggest that this will occur in the next 12 months (being the near future). Therefore as the jurisdiction is not engaged for the remaining trees, no orders can be made for any interference with them or for any other works.

15 With respect to the applicant's concerns about the risk of injury arising from tripping over surface roots growing onto his property, I make the following observations.

16 There are indeed many reasonably large woody Ash tree roots visible on the surface of the soil on the applicant's land. That portion of the applicant's property is a large garden bed containing some remnant Eucalypts, some established and quite woody groundcover Grevilleas, and a number of other shrubs. The bed is sparsely planted.

17 The applicant contends that the roots have 'risen' to the surface in the last five years, and even though he has covered them with mulch on several occasions, the mulch breaks down leaving the roots exposed. He is concerned that anyone running or walking through the garden bed could trip on the roots and injure himself or herself.

18 The respondents submit that the risk of tripping is low because the area is a garden bed most frequently accessed by people who are well aware of the roots. They also maintain that there are many other tripping hazards in the same garden bed including rocks, stumps and plants. However, notwithstanding that position, the respondents have offered to pay for a load of topsoil and mulch to cover the roots. This offer is unacceptable to the applicant who would prefer to remove the roots as he has done in other parts of his property.

19 In considering what if any orders should be made in regards to the surface roots, I am not satisfied to the level required by s 10(2) of the Act, that there is any real likelihood of injury arising from those roots. Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], considered that 'something more than a theoretical possibility is required in order to engage the power under the Trees Act'. As I am not satisfied that the jurisdiction is engaged with respect to injury, no orders can be made by the Court. So while I note the respondents' offer, there is no power under s 9 to require it to be implemented.

20 Therefore in conclusion, the Orders of the Court are:

(1) The application is upheld in part.

(2) The applicant is to obtain a quote for the works detailed in paragraphs [11] and [12] of this judgment from the plumber who carried out the previous repairs. The respondents are to be advised of the quote. If the respondents agree to the quote the applicant is to engage the plumber to do the work. In the event that the quote is unacceptable, the applicant is to obtain another two quotes and advise the respondents. The parties are to select the cheapest quote and the applicant is to engage and pay for the plumber.

(3) The work is to be completed within 90 days of the date of these orders.

(4) The respondents are to reimburse the applicant 50% of the cost of the work within 21 days of the receipt of a tax invoice for the completed work.

(5) Apart from the root beneath the conduit and the water pipe, no root greater than 50 mm in diameter is to be cut during the excavation. Roots of 50 mm or more are to be excavated around.

(6) The application with respect to the removal of surface roots is dismissed.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 29 May 2012