Ambour v Micdomjon Pty Limited

The actions of the respondent 13According 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. 14In 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. 15The 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 16The 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. 17Mr Walker and Mr Hamilton were on site and gave evidence. 18Mr 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. 19I 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. 20Mr 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 21The 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. 22Mr 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. 23Mr 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. 24Mr 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 25In 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. 26The 2010 review of the Act extended to Court's jurisdiction to consider applications where trees have been removed. 27If 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 28On 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. 29Therefore 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. 30Of 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. 31In 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. 32While 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. 33I 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. 34In 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. 35With 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 36After 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. 37Therefore, 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2012