Braun v Basser

The hearing

1. The hearing took place online via audio-visual means. Each party was represented by an agent: Rosemarie Abesamis for Mr Braun, and Paul Nothman for Ms Basser. Ms Abesamis and Mr Nothman are not legal professionals. As agents, they speak the minds of the parties, with little overlay. Without ignoring their input, I use the names of Mr Braun and Ms Basser throughout this judgment.
2. I informed the parties that the Court would arrange a later onsite inspection if, at the end of the hearing, I determined it would be required for this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that such an inspection would not be required. I bring my own arboricultural expertise and experience to making this decision.
3. Due to the concerns of both parties regarding potential risk, the Court's usual timeframes in these proceedings had been shortened to allow for an earlier hearing than would otherwise occur.

Framework for this decision

1. Jurisdictional tests must be met before the Court can make orders under Pt 2 of the Trees Act. The Court must be satisfied that the applicant has made a reasonable effort to reach agreement with the tree's owner (s 10(1)(a) of the Trees Act).
2. Then, at s 10(2) of the Trees Act, the Court must be satisfied that the subject tree 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. The tree must be situated on land adjoining the applicant's land (s 7). Before making any orders, such as those set out at s 9 of the Trees Act, the Court must also consider the matters at s 12.

The applicant made reasonable effort

1. Mr Braun filed copies of text messages and emails between Ms Basser and him. The effort made was reasonable. It is clear from the correspondence that their views on a reasonable outcome were unlikely to align.

Sewer pipe

1. Mr Braun presented the case, without any suggestion of doubt, that roots of Ms Basser's tree blocked his sewer pipe. He argued that the tree's roots damaged the pipe and that is why he was required to call the plumbing contractor to fix it. If not for the tree's roots damaging his pipe, the pipe would not have required repair and roots would not have been cut. The plumber's costs, the need to remove the tree, the need for an arborist's report - these have all risen from the initial action of tree roots damaging his pipe.
2. Mr Braun referred to photographs showing large tree roots growing around the pipe, before the pipe was dismantled. He referred to photographs showing the dismantled pipe, surrounded by tree roots. The cut roots can be seen in photographs. I asked Mr Braun if he could show me in these photographs where I might observe the damage caused to the pipe, or roots blocking the pipe. He was unable to show me this.
3. Ms Basser saw it differently. Ms Basser said there is no evidence that her tree's roots damaged the sewer pipe. The sewer pipe is an old earthenware pipe, the original from the time Mr Braun's house, her own house, and others along the street were built. Joints of these pipes crack over time, allowing root ingress. It is a maintenance issue, she argued, and provided information from Council's website explaining exactly that.
4. If roots were in Mr Braun's sewer pipe, Ms Basser submitted that there is no evidence that the roots are from her tree. She took the Court to one of Mr Braun's photographs that shows a clump of bamboo on his side of the fence, closer to the pipe than her tree is. Ms Basser argued that bamboo roots are prolific, and if anything was going to grow into the pipe it would be bamboo.
5. Ms Basser took the Court to the invoice provided by Mr Braun's plumbing contractor for the works that are now partly completed. Mr Braun had explained that the invoice includes all works: those done in July, and those that are still required to repair or replace the sewer pipe. The invoice states: "REPLACE EXISTING 6" BOUNDARY TRAP SHAFT IN GRASS AREA Excavate to expose existing inlet and outlet drainage, cut out boundary trap shaft and install new PVC boundary trap shaft, induct mica flap and connect to existing inlet and outlet drainage. Install access to downstream dropper. Terminate at surface with bolted trap screw."
6. Despite the invoice being detailed in its description of the works, Ms Basser argued, it does not mention clearing of roots, using a camera to find the blockage, damage caused by tree roots, nor any of the issues claimed by Mr Braun.
7. The onus is on the applicant to demonstrate to the Court that the tree has damaged his property. None of the evidence does this. Photographs show large roots around the sewer pipe, but no evidence of the roots damaging the pipe. If the plumbing contractor provided Mr Braun with photographs or video footage taken within the pipe showing roots blocking the pipe, they have not been provided to the Court. In his submissions, Mr Braun described to the Court that the plumbing contractor told him roots would have to be cut so that he could fix the pipe. Photographs support this. Large roots grew above and against the pipe, so it is difficult to see how the pipe might be repaired without cutting those roots to gain access to the pipe.
8. The Court cannot be satisfied that the tree caused damage to Mr Braun's sewer pipe.

The fence

1. The ageing timber paling fence along the parties' common boundary leans into Mr Braun's property where the tree's stem pushes against it. Although relatively minor, this damage has been caused by the tree, meeting the jurisdictional test at s 10(2)(a) of the Trees Act. The parties agree that the fence only needs repairing, not replacement. Neither party seeks orders for works to the remainder of the boundary fence. If the tree is retained, the fence could be repaired in a way that would prevent further damage by leaving a gap in the fence for tree's stem. Such fencing orders have been made in other matters, such as Jarrett v Hutchinson [2020] NSWLEC 1365.

Is the tree likely to damage Mr Braun's property, or cause injury?

1. Both Mr Braun and Ms Basser are concerned that the tree might fall as a result of the recent severing of some of its roots. Mr Strachan, arborist, visited Mr Braun's property soon after roots were cut. He prepared a report for Mr Braun. The report was not prepared as an expert witness statement, as these proceedings had not yet commenced. Hence, the report does not include the content nor the expert witness declaration required by Schedule 7 of the Uniform Civil Procedure Rules 2005: it was only prepared to inform Mr Braun. The report states that Mr Strachan is an AQF level 5 arborist.
2. Mr Strachan described the tree as being 20-25 metres tall with a stem diameter of 700 mm.
3. Commenting on the roots cut by Mr Braun's plumbing contractor, Mr Strachan noted the following (Exhibit B, page 8): "The severed roots consisted of one 180mm root, one 120mm root one 150mm root. There is also one root measuring over 200mm in diameter that has been 90% cut, this root was deemed to be the main tension root of the tree. All of the root severance has taken place within 500mm of the tree, well within the SRZ [Structural Root Zone]."
4. With Ms Basser's permission, Mr Strachan also inspected the tree from within her property. On page 9 he wrote: "In the adjoining property of [Ms Basser's property], there has been further plumbing works conducted by a separate contractor, [contractor's name removed]. These works have resulted in further root severance on the compression side of the root plate. Three roots measuring 150mm, 150mm and 100mm were recorded on this side of the tree, all within 700mm of the trunk."
5. Mr Strachan's brief discussion suggests he is of the opinion that the root severance on Mr Braun's property, where "the main tension root of the tree" was cut, has destabilised the tree, and it is now likely to fail. Earlier root cutting on Ms Basser's property has affected the nature of potential root plate failure and the direction in which the tree might fall.
6. Mr Strachan's report included a risk assessment, without clear methodology or discussion, that does not provide the reader with any meaningful understanding of the tree's risk level.
7. Mr Strachan recommended that "…the tree should be removed almost immediately."
8. Council filed material with the Court. Three Council officers, including Council's Tree Management Officer, Community, Assets and Operations, inspected Ms Basser's tree on 29 July. The filed report appears to be written by Council's Tree Management Officer, Malcolm Coote. Mr Coote wrote: "Recent site disturbance: Plumbing work has been conducted in the property of [Braun property], at the time of my inspection I found that four (4) roots had been cut with the largest root being around 180mm, this root pruning has not destabilized the tree. On inspection I found no movement in the ground surrounding the base of the tree, indicating the tree is stable, and showing no signs of impact from the root pruning. The property of [Basser property] has had plumbing works carried out next to the tree, the trench has been filled in and new turf laid. (No evidence of root pruning). At the time of my inspection, I found no valid reason for the removal of this tree, there were no signs that the tree had any major health issues, no signs that would lead me to conclude that the tree is unstable or that any part of it is likely to fail. While tree failure is a hypothetical possibility, there is no evidence to prove the likelihood of this happening. The tree appears to be a healthy specimen with good form and no obvious structural defects."
9. The two arborists, Mr Strachan and Mr Coote, have reached different conclusions: the former recommending tree removal as soon as possible, the latter finding no reason to remove the tree. Both observed the roots cut within Mr Braun's property. Although I have not inspected the site, the many photographs filed by Mr Braun as well as those in both arborist's reports show the situation clearly.
10. Should the tree fall, it would cause significant property damage. The risk of this occurring depends on the likelihood of its root plate failing. Prior to the recent cutting of roots, root plate failure was unlikely. What is the likelihood of failure now that these roots have been cut? The tree has other roots, even on Mr Braun's side of the tree, although they might be deeper or to one side so that the excavation that has taken place has not uncovered those roots. It is unknown how many other roots might be on this side of the tree, or what size they might be. This will remain unknown unless the entire root plate is exposed here, which is not practical.
11. Assessment of the risk here cannot be definitive, nor quantitative. It is a qualitative assessment based on the limited information available. I accept that Mr Coote saw no sign that the root plate has moved in the ground. I am not comfortable accepting that this observation demonstrates, or even implies, that the tree is stable. Roots were cut only recently. It may be that sufficient wind loading from a certain direction will lead to the root plate rotating and the tree falling. The severed roots are large enough to provide significant structural support, particularly under tension. The tree has therefore lost that support. While younger and smaller trees have the time and vigour to grow new roots to adapt to changing loads, root growth of this tree cannot replace the lost structural support in the short term. This tall tree extends above all surrounding landscape features, exposed to strong winds from all directions. Considering these factors - the tree's exposure to winds, its age, the recent loss of structural roots - I find it is likely that the tree might fail in the near future, a period I regard as 12 months as per the rule of thumb in Yang v Scerri [2007] NSWLEC 592. This enlivens the Court's jurisdiction at s 10(2) of the Trees Act: the tree is likely to damage the applicant's property in the near future, or is likely to cause injury.

Consideration of relevant matters

1. I have considered the matters at s 12 of the Trees Act and discuss the relevant matters below.
2. The tree is close to the parties' common boundary. It impacts the fence. Tree failure would potentially damage both properties, and other surrounding properties.
3. Council consent would be required to remove the tree. Council has refused consent to remove the tree.
4. Due to the tree's form and growth habit, pruning cannot sufficiently reduce the risk level. The tree's crown cannot be reduced without destroying the tree's form and viability. Removing the tree is the only practical option for mitigating the risk.
5. The tree contributes to the local landscape character, to public amenity, and to the landscape value of Ms Basser's property. It is part of Waverley's urban forest, contributing cooling, pollutant removal, carbon sequestration and other ecosystem services.
6. Ms Basser has not contributed to the increase in the tree's risk potential through any action or omission. Prior to the events of last month, Mr Braun has never raised any issue of concern with Ms Basser regarding this large tree growing against his boundary fence.
7. Ms Basser did not contribute to any damage to Mr Braun's sewer pipe through any act or omission. She will not be required to pay any compensation.
8. Mr Braun has contributed to the tree's increased risk potential by engaging a plumbing contractor who cut structural roots of the tree. On the evidence before me, I find that, were it not for the recent cutting of the tree's roots on Mr Braun's property, the tree might not require removal. I say "might not require removal" because there is a lack of evidence on this issue. Based on the available evidence, I have concluded that Mr Braun's plumbing contractor determined that large roots of the tree required cutting to gain access to, and to repair or replace, a section of Mr Braun's sewer pipe (regardless of whether or not the tree's roots had damaged or blocked the pipe). Works then proceeded quickly, as they often do with sewer pipe repairs. While Mr Braun admitted being informed roots needed cutting prior to the event, there was little consultation on the matter. Ms Basser was certainly not a party to any discussions at that point. Once Mr Braun observed the cut roots, he realised the potential impacts and took reasonable steps to deal with the issue. Damage to the tree's roots was not a result of any malicious action on Mr Braun's behalf. He was taking reasonable steps to maintain his property. He was perhaps negligent in failing to consult with the plumber further before roots were cut, or to consult with the tree's owner before roots were cut.
9. In my experience, it is often possible for pipes to be realigned around tree roots. Although Mr Braun's plumber informed him that roots must be cut, there is no evidence that other options were explored, where those options might avoid impacts to tree roots. Once the plumber had completed initial investigations, there were, in my mind, two possible solutions. On one hand, roots must be cut to access and repair the sewer pipe, resulting in increased tree failure risk, requiring the tree's removal. If that was the only solution, it might be that the tree owner would be expected to pay for the tree's removal. Alternatively, the plumber might have found a solution whereby installing a new section of pipe diverted around the roots, connecting to existing pipes at either end, would avoid cutting roots and allow tree retention. No evidence has been provided to this point. Mr Braun wrote at question 8 of his Claim Details Form (Form H): "Second Arborist [sic] report by the plumber will follow, but it is not completed yet." Other than the plumbing invoice discussed earlier, the Court was not provided with any report from the plumber.
10. I cannot be definitive in determining whether or not there was a solution available for repairing Mr Braun's sewer pipe that might have allowed the tree's retention. Clearly, given the timing of events, such an option was not explored. Considering the tree's value, and the impacts of cutting its roots, it is reasonable to expect such options should have been explored.
11. This issue goes to apportionment of the costs of removing the tree. Each party expects the other to pay. They are not wrong. Ms Basser justifiably feels that it is only Mr Braun's (or his plumber's) recent actions that have led to the need to remove the tree, so he should pay. Mr Braun feels that he was just carrying out necessary property maintenance that required cutting of roots from a neighbouring tree, so the tree's owner should be responsible for her tree. Neither party has been malicious.
12. To me, while it is possible that there was no alternative method for repairing Mr Braun's pipe, the evidence does not suggest that its possibility was given due consideration. It seems more likely, in my mind, that such extensive root pruning could have been avoided. Apportioning the cost of tree removal can only be based on such rough approximation, as there is nothing more upon which to rely. For this reason, Mr Braun will bear 75% of the cost of removing the tree.
13. The Court has previously required the applicant to pay for removal of a neighbouring tree where the applicant's actions have led to the need for tree removal. For instance, at [76]-[79] of Joaquim v Adamson [2009] NSWLEC 1312, Senior Commissioner Moore and Acting Commissioner Fakes found: "76 The necessary first consequences which follows from that conclusion is that the removal of the portion of the fig tree closest to the applicants' house is made necessary solely as a consequence of some activity or combination of activities undertaken by the applicants. 77 The second consequence that necessarily flows is that the requirement for the removal of the remainder of the fig tree is, in turn, wholly necessary because of the actions of the applicants or persons acting on the applicants' behalf. 78 It therefore follows that, in consideration of the causal matters that are contained in s 12(i)(i) of the Trees Act, the sole cause of the necessity to remove what would otherwise have been a healthy, significant and mature fig tree are actions by the applicants or some person acting on the applicants' behalf. 79 For that reason, although we have concluded, for the reasons earlier enunciated, that the fig tree should be removed and we are of the view that we should order that that removal be undertaken by the respondents, we also have concluded that they should be reimbursed the totality of the cost removal of the fig tree by the applicants."

Conclusion

1. The Court is not satisfied that Ms Basser's Cook pine damaged Mr Braun's sewer pipe. No compensation will be ordered.
2. I find that the likelihood of tree failure has increased following recent works such that the tree is now likely to cause damage to Mr Braun's property or is likely to cause injury. It must be removed.
3. It is possible that roots required cutting for Mr Braun's sewer pipe to be repaired, but it is more likely that an alternative solution might have been found that would avoid impacts to the tree, allowing its retention. Based on this, Mr Braun will pay 75% of the cost of tree removal. As the tree is Ms Basser's, it will be more practical for her to engage an arborist and arrange the works. Mr Braun will reimburse her accordingly.
4. The fence on the common boundary has been pushed out of alignment by the tree. This is a result of Ms Basser's tree only, so she will pay for the fence's repair.

Orders

1. Based on the foregoing reasons, the Court orders: 1. The application is granted to the extent of the orders below. 2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the Cook pine in the rear garden of her property and grind out its stump to a depth of 200 mm below ground level. The works are to be done in accordance with the 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. 3. The respondent is to give the applicant 2 days' notice of the works in order (2). 4. The applicant is to allow any access necessary for the works in order (2) to be completed. 5. Within 7 days of receiving a copy of a receipted paid invoice for the works in order (2), the applicant is to pay the respondent 75% of the invoice amount. If a receipted paid invoice is not provided by the respondent within 60 days of the date of these orders, this order lapses. 6. Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to realign the section of fence along the common boundary within 3 metres of the tree, using the existing fence materials where possible but replacing fencing materials where necessary. 7. The exhibits are returned, except for Exhibit A.

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: 31 August 2021