(1)The application is upheld in part.
(2)The respondent is to pay the applicant $770 within 14 days of the date of these orders.
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
1ACTING COMMISSIONER: Mrs Yorke has had sewer pipes in the rear garden of her Quakers Hill property repaired on two occasions: the first in December 2006; the second in October 2011. She says the damage was caused by roots of a neighbouring Lilly Pilly tree. She has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for compensation for the cost of those works.
2Mr Ahluwalia, the respondent in this matter, had the tree removed last year.
3The parties disagree on when Mrs Yorke first notified Mr Ahluwalia that roots from his tree may have damaged her pipes. I must determine if the Court has jurisdiction to make orders and, if so, what amount of compensation would be appropriate.
4The compensation sought by Mrs Yorke is as follows.
5So although the application sought compensation of $9,730.80, the total cost to Mrs Yorke appears to be $8,730.80.
6Mrs Yorke says the Lilly Pilly was large and spread over her property. Mr Ahluwalia showed us where the tree had been located on his property, within two metres of the pipe. Mrs Yorke also has a bottlebrush tree within two metres of the pipe.
7Mrs Yorke says on both occasions the plumber told her that roots found in the pipe were from the Lilly Pilly. Apart from this there is no evidence identifying to which tree, or trees, the roots belonged.
8Mrs Yorke said that she told Mr Ahluwalia soon after the first incident, and several times since, of the damage, and that she thought the roots were from his tree. Mr Ahluwalia says that he was unaware until October 2011 that there had even been repair works carried out, despite a section of the fence along the common boundary being removed for more than a day during the 2006 works.
9Mrs Yorke says that it would be expected, and normal, for her to notify her neighbour after the first incident, and that this is what she did. Mr Ahluwalia says that he removed the tree as soon as he became aware of the problem. This was prior to any notification of the Court application. He says that this shows he was willing to deal with the issue as soon as it was raised, without threat of legal action.
10Although the Lilly Pilly has been removed, s 4(4) states that the Act applies to trees that have caused damage but have been removed.
11Although Mr Ahluwalia says he did not receive the notification required by s 8(1) of the Act, I note that s 8(3) allows the Court to waive that requirement. The requirement is waived. Mr Ahluwalia has been allowed all reasonable opportunity to respond to the application.
12The pipes were terracotta and may have been deteriorated. There was more than one tree in the vicinity of the damage. Nevertheless I am satisfied that it is more than likely that roots from the Lilly Pilly would have contributed to damage, and were therefore a cause of damage.
13Therefore one of the tests at s 10(2)(a) of the Act is satisfied and I can make orders as I see fit.
14At the time of the first damage Mr Ahluwalia had only owned his property for less than one year. As the Court has previously found, where damage is likely to have occurred prior to a respondent's ownership, it would be unfair for them to pay for that damage. Furthermore, Mr Ahluwalia could not be expected to know that the tree might be damaging an unseen pipe. Therefore there will be no compensation ordered for the 2006 damage.
15In determining apportionment the Court considers other factors that may have contributed to damage, and whether, or when, the applicant notified the respondent of the damage.
16The parties disagree on the time of notification and all evidence of this is hearsay.
17Regarding other contributing factors, the sewer pipe may have had existing faults allowing tree roots to enter it. Roots of other trees in the vicinity may also have damaged the pipe. I am willing to accept, on the limited evidence before me, that the contribution of roots from the Lilly Pilly is approximately 30% of the damage.
18Returning to the issue of notification, the fairest way that I see fit is to the share the benefit of doubt between the parties, splitting it 50:50. This reduces the respondent's contribution from 30% to 15% of the cost of the 2011 works. Those works cost $5,111.80. 15% of this, to the nearest $10, is $770.
19Therefore, the orders of the Court are:
(1)The application is upheld in part.
(2)The respondent is to pay the applicant $770 within 14 days of the date of these orders.
__________________________
D Galwey
Acting Commissioner of the Court
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Decision last updated: 27 July 2012