Bousfield v Gallegos

The Part 2 application.

1. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
2. The application claim form (Exhibit A) refers to a letter sent to the respondent on 2 February 2017 which outlines the reasons for seeking action. The letter addresses sections of the Trees Act and presses the applicant's position. The Part 2 application concerns damage to property and potential injury.
3. In summary, and in regards to damage to the applicant's property, the applicant contends that:

• roots of the respondent's trees have, on several occasions, damaged the applicant's PVC sewer pipes and have necessitated cleaning and or replacement;
• the guttering closest to the trees requires constant clearing;
• roof tiles could be damaged; and
• fallen leaves along the boundary require constant clearing.

1. The risk of injury posed by the trees is unclear.
2. The applicant is seeking the following orders - all of which are to be made against the respondent: 1. Reimbursement of plumbing costs totalling $1,790.00; 2. Payment of $1,083.52 for additional plumbing work yet to be completed; 3. Reimbursement of the court filing fee; 4. Compensation to the applicant for stress, aggravation and inconvenience of the damage (estimated at $5,000.00); 5. Payment of Mr Jason Bousfield's costs of $4,300.00 (itemised in a table of costs attached to the application claim form); 6. Removal, by a contractor, of all roots from the respondent's trees growing through the applicant's back yard; 7. Remove or relocate any tree likely to cause similar damage in the future; 8. Remove or relocate any tree currently causing or is likely to cause future damage to the fence; 9. Remove or relocate any tree where if limbs break off will cause damage to the gutter-line or roof of the applicant's home.
3. In regards to proposed orders (3), (4) and (5), Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

The sewer

1. The applicant contends that roots from the respondent's trees have cracked and entered the sewer pipe leading to blockage and the discharge of sewage. On 24 October 2016, a plumber attended the site and successfully cleared the pipe with high-pressure water jetting. A report included in Exhibit B states that CCTV investigation found "tree root intrusion where they entered the line and cracked the pvc causing the blockage". The report advises that the section of pipe needs to be excavated and defective parts replaced with new PVC pipe and fittings, including the installation of a new inspection point. The cost of the inspection and clearing was $516.40. The applicant proceeded to have a section of pipe replaced as advised by the plumber. The cost of this work was $1, 273.60. The applicant is seeking reimbursement for these costs.
2. I was informed that the applicant did not notify the respondent until some days after the sewer had been repaired; this was because the problem had to be fixed as soon as possible.
3. According to the applicant, in December 2016 the sewer became blocked again, in a section not replaced in October. During the hearing, Mr Bousfield confirmed that the second blockage occurred so soon after the initial blockage because the plumber didn't finish the job. According to the respondent's evidence (Exhibit 1). The plumber returned and rectified the problem by clearing the pipe, at no cost to the applicant.
4. The claim form includes a quote for $1083.52 for the replacement and inspection of the remaining section of pipe. The respondent stated that he offered to bring his plumber around to fix the problem. During the hearing it was stated that the respondent came to the applicant's door with his plumber but access was refused as the applicant was home by herself and wished her son to be present. The respondent states that he has sought advice and has formed the view that the sewer is the applicant's responsibility.
5. During the on-site hearing I observed that there are no trees currently growing in the applicant's rear side yard, in the vicinity of the sewer pipe. I observed two stumps, one close to the inspection point where the applicant's sewer connects with the main. The applicant stated that the tree closest to the inspection pit had started to sucker but has since been killed.
6. I observed large roots, which appeared to be fig roots, growing under the dividing fence and into the applicant's property. The majority of these roots are in the north-western corner of the applicant's property where it adjoins both the respondent's property to the north and the other adjoining property to the west (which also adjoins the respondent's property). Given the respondent's uncontested statement that large fig trees had been growing on his and the neighbour's property, it was not clear as to which of the fig roots had originated from the respondent's tree. I am satisfied that some remaining fig roots further to the east were most likely from the respondent's tree. Despite the fact that the trees had been removed last October, the roots are still green. While they are unlikely to keep growing, they project well above the surface and constitute a trip hazard.
7. While it is possible that roots from one or more of the respondent's trees damaged the applicant's sewer and allowed entry of roots, no root material has been collected from the section of replaced pipe that may be used to identify the source of the problem. Even if fig roots were found, it may be difficult to identify from which tree they came.
8. Given this uncertainty I cannot be satisfied the extent required by s 10(2)(a) that orders should be made requiring the respondent to reimburse the applicant for the costs of unblocking and replacing the sewer or to contribute to the replacement of the remaining section. I note that the respondent took action to remove the most vigorous of his trees once he was notified of the sewer problem and that he has offered to have his plumber fix the sewer.

Fence and guttering

1. The applicant has raised concerns about guttering on the roof as well as potential damage to the fence. No evidence has been adduced that the any of the trees have caused, are causing, or could in the near future cause damage to the fence. Similarly there is no evidence that any of the respondent's trees have damaged the applicant's guttering.
2. However, I am satisfied that the remaining surface roots constitute a trip hazard and should be removed. As s 10(2)(b) is satisfied, orders can be made requiring their removal.
3. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. For example in this matter, if the sewer becomes blocked again and fresh root material is found. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

Part 2A application

1. The applicant contends that the respondent's trees severely obstruct sunlight to five windows of her dwelling. The windows are shown as follows:

• W1 - east facing laundry window
• W2 - north-facing kitchen window
• W3 - north-facing bedroom window
• W4 - north-facing bathroom window
• W5 - north-facing toilet window

1. The orders sought are to require the respondent to:

• Prune the tree line so that no tree branch carries over the fence line and give a commitment to maintain that perimeter;
• Reduce the height of the tree line to minimise the blockage of natural light to the north-facing windows of the applicant's dwelling; and
• Pay Mr Bousfield's costs.

1. Photographs in the application claim form indicate that the prior to the filing of the Class 2 application, the respondent's trees formed a relatively dense and interlocking canopy. Since that time the respondent has severely pruned the trees. Mr Bousfield stated that the applicant would withdraw the Part 2A application if the respondent were required to maintain his trees. This is an order I cannot consider making without first considering the relevant jurisdictional tests in Part 2A of the Trees Act.
2. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
3. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge?
4. Neither party provided any independent horticultural or arboricultural expert opinion. With the expertise I bring to the Court I observed the trees to be an eclectic collection of individual trees and shrubs. It is possible that the Cestrum and the Privet (both common weed species) may be self-sown and not planted. The respondent stated that a number of the trees were present when he purchased his property in 1990.
5. In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants self-seeded or are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed.
6. 'So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where in part the commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge".
7. On the basis of the species, spacing and relative ages of the trees the subject of the application, I cannot be satisfied that the trees have been planted to form a hedge. As s 14A(1)(a) is not met, the Court has no jurisdiction to further consider the matter and the Part 2A application is dismissed.

Orders

1. On the evidence before me, the Orders of the Court are: 1. Within 30 days of the date of these orders, the respondent is to engage and pay for an arborist or stump-grinding contractor to remove all surface roots, which are growing beneath the common dividing fence from the applicant's property. The roots are to be removed to ground level, the grindings removed from the site and the site left level. If the roots are too small to be ground, they are to be cut and removed by hand. 2. The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (1). 3. The claim for compensation is dismissed. 4. The Part 2A application is dismissed.

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Judy Fakes Acting 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: 09 October 2017