Burgin v Turnbull [2018] NSWLEC 1412 | Case summary

Land and Environment Court (NSW)|2018-07-19

Background

Two large Liquidambar trees grew in the garden of John Turnbull's Bolton Point property. He saw them from beginning to end, having planted them in the 1960s and removed them earlier this year, by which time they had each reached an impressive size, as photographs and their remaining stumps attest.
In the early 1980s, a pool was constructed on a neighbouring property along with a retaining wall on or close to the common boundary. In 2013, Rhonda Burgin ('the applicant') purchased that property and has lived there since. In May 2017 her sewer pipes became blocked. The plumber who cleared them found tree roots inside. Suckers grew in her garden from roots of Mr Turnbull's Liquidambars.
In early 2018, some eight months after the initial sewer blockage, Ms Burgin wrote to Mr Turnbull ('the respondent'). Her letter (Exhibit C) was a complaint about the trees and a request that they be removed. It began with "Dear Sir, We are writing to complain about the Liquidambar trees on your property…". It is filled with false claims and mistruths, as became apparent through statements made by Mr Arthurson (Ms Burgin's fiancé and her agent at the hearing). Examples include: The Liquidambar tree is considered a noxious weed… The roots were identified as the roots of Liquidambar tree. We have now discovered the pool has been undermined by the trees [sic] root system and now we have voids under the pool and the pool is sinking and the coping around the pool is lifting and cracking. …the pool will have to be removed and replaced once the trees are gone.
Less than five weeks later, on 1 March, Mr Turnbull had the trees removed.
On 16 May, Ms Burgin filed an application with the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking the following orders: 1. Removal of Liquidambar trees (STYRACIFLUA) from their yard with the killing of their root system. 2. All damage to the sewer system be repaired and replaced. 3. Swimming pool has to be removed and replaced due to root damage as well as having to be removed to facilitate the excavation to repair sewer. 4. All fences and retaining walls damaged by the root system and by the required repairs to yard and sewage system and pool be replaced. 5. Root removal from yard to prevent any future damage to sewage system, pool area and yard. 6. Yard repair, landscaping and repair to any and all paving and pathways areas [sic] damage from all repair work carried out. 7. Cost for temporary accommodation if required while sewer is repaired if home has no toilet or shower facilities.

Matters of which the Court must be satisfied

Before making any orders, the Court must be 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 (s 10(2) of the Trees Act). To the extent required by this test, the onus is on the applicant to demonstrate a nexus between the tree and the damage.

Matters to be considered

If a tree is found to be the cause of damage, the Court must consider a range of matters (s 12) before making any orders. These include the benefits of the tree, other causes of damage, actions taken by the parties, and so on.

The onsite hearing and amended orders

At the onsite hearing, Ms Burgin was represented by her fiancé, Mr Arthurson, and Mr Turnbull was represented by Ms Nevin, solicitor. No experts were required at the hearing; I bring my own arboricultural experience to the matter.
During the hearing, Mr Arthurson clarified issues around the orders being sought. Now that the trees have been cut to ground level, Ms Burgin is not seeking removal of tree roots from the properties.
I raised with Mr Arthurson my observations that one end of the applicant's swimming pool was lower than the other, and there were obvious signs of repair to the pool surrounds where it had cracked. The lower end of the pool was that end farthest from Mr Turnbull's property, and is supported by a retaining wall. Mr Arthurson stated that the ground beneath and around that end of the pool, supported by the retaining wall, had subsided some time ago due to issues with the earth and the retaining wall, issues unrelated to tree roots. The applicant had concrete pumped into the ground beneath and around the pool as a remedy. The claim in the applicant's letter to the respondent regarding damage to the pool (see [3]) is therefore entirely misleading. The requirement at s 10(1)(a) of the Trees Act is "that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated…". The false statement made in the letter is not, in my mind, part of a reasonable effort to reach agreement. Nevertheless, in the interest of all matters being fairly heard, I will not dismiss the application on these grounds.
Mr Arthurson further clarified that a second reason for replacing the pool had been the need to repair the sewer pipe, which runs beneath the pool's far end. He claimed the plumber's advice was that the pool's removal would be required to carry out repairs. The plumber later advised that it would be possible to line the pipes in situ, without disturbing the pool. Therefore, Mr Arthurson explained, there was no need for the Court to consider orders for the pool. This also removed the need for orders for overall landscaping work and for temporary accommodation.
As a result, the orders being sought were those for repairing the sewer, which could be lined, and repairing the retaining wall along the common boundary of the two properties.

The trees and their roots

The larger of the two Liquidambars was approximately four (4) metres from the common boundary. Its roots spread to the common boundary and beyond. I accept the applicant's evidence that suckers growing in her garden are from Liquidambar roots, most likely originating from this tree.
The smaller tree was further from the fence. With the dominant tree's roots colonising the area closer to the fence, the smaller tree was less likely to have roots growing into the applicant's garden.

Has the tree damaged the retaining wall?

Between the large Liquidambar stump and the applicant's pool a retaining wall on, or close to, the common boundary supports the higher land on the respondent's property. Some evidence within filed documents referred to the state of the treated pine retaining wall here, but as Mr Arthurson pointed out at the hearing, it is a 'concrete block' retaining wall on the boundary, with a separate treated-pine log wall in front of it on Ms Burgin's property. The pine log wall serves only aesthetic purposes. The block retaining wall was apparently constructed at the same time as the pool, during or soon after 1980.
The applicant has presented little evidence regarding the state of the block retaining wall, perhaps relying on observations to be made during the hearing. Ms Nevin submitted that there was no evidence that roots have caused damage; no investigations have been carried out, such as those suggested in the tree principle in Fang v Li & anor [2017] NSWLEC 1503.
I observed the retaining wall, or at least that part of it visible behind the log wall in front of it, to be comprised of 300 x 300 mm concrete pavers, or some similar components, installed vertically with mortar to connect them, creating a wall some two or three pavers thick. The wall is clearly not properly designed and constructed to act as a retaining wall. The pine logs might be for aesthetic purposes, but they also conceal the inadequacy of the retaining wall, a wall constructed by previous owners of the applicant's property. The wall is indeed in poor condition, misaligned and prone to failing altogether in future, though not immediately. Nothing I observed onsite, or took from the evidence, demonstrated to me that the wall's condition was a result of tree root growth rather than the pressure of the soil it supports, combined with hydrostatic pressure, acting on its inadequate structure. There is also no evidence that the wall's condition has deteriorated during the five years Ms Burgin has owned the property. As a result, this element of the application will be dismissed.

Has the tree damaged the applicant's sewer pipe?

Ms Burgin claimed in her letter to Mr Turnbull (see [3]) that roots in her sewer pipe "…were identified as the roots of a Liquidambar tree." In fact, as Mr Arthurson conceded at the hearing, no such identification of roots ever occurred.
Nevertheless, I take on face value the applicant's claim that Liquidambar roots blocked her sewer pipe and required a plumber to attend to the toilet pan and sewer pipes on more than one occasion. The sewer pipe runs from her dwelling to her rear boundary, crossing the garden area where Liquidambar suckers have grown. There is no other significantly large vegetation in close proximity to the pipes. I am satisfied that the tree damaged the sewer pipe by blocking it, and I can make orders for this element of the application after considering the matters at s 12.

Matters to be considered before making orders

The larger Liquidambar grew some four metres from the common boundary - its canopy spread above the applicant's land and its roots grew across her land.
The tree contributed significantly to the local landscape and contributed positively to the amenity of both Mr Turnbull's property and Ms Burgin's.
Damage to terracotta sewer pipes has been the subject of many applications made under the Trees Act; most recently I have dealt with several cases requiring consideration of the age of terracotta pipes, their condition, and the ability of the neighbouring tree owner to prevent such damage: for instance, Fifield v Sang and Wang [2018] NSWLEC 1377; Knight v Simmons [2018] NSWLEC 1231.
Ms Burgin's dwelling was constructed during or around 1985, so the terracotta sewer pipe is more than 30 years old. In decisions including the ones mentioned above, the Court has considered 30 years to be the upper end of the period such pipes can be expected to last without cracking, leaking and generally deteriorating. Cracks in seals where terracotta sections are joined are common, allowing moisture to leak, encouraging root growth in the surrounding soil, and allowing root ingress into the pipe. Roots of the Liquidambar may have grown into the pipe, but this is at least partially the result of the pipe's age and condition.
Ms Nevin explained that Mr Turnbull obtained quotes for tree removal within one week of receiving Ms Burgin's letter of complaint. Within five weeks of receiving the letter, Mr Turnbull had both Liquidambars removed. Ms Nevin pointed the Court to MacPhail v Ware [2008] NSWLEC 1213, where the Commissioners found (at [18]) there was no basis for making orders for one of the trees because the respondents "…had no realistic opportunity to abate that nuisance prior to it being drawn to their attention; [and] the actions undertaken by Mr Ware to prune the roots on the side of the MacPhails' drive has been a proper and prudent response when the matter was drawn to his attention…." There was no reason prior to receiving Ms Burgin's letter for Mr Turnbull to expect his trees' roots to damage her sewer pipes, or any other part of her property. I cannot see what action Mr Turnbull could have taken to prevent the damage, short of removing trees for which there was no justification to do so.
Mr Arthurson made extensive submissions about water run-off from the respondent's property onto the applicant's. This matter is the focus of a separate dispute, but he argued that the run-off has resulted in high soil moisture levels throughout the applicant's property, encouraging the Liquidambar's root growth here. This is possible, but would still not have given Mr Turnbull a reason to expect sewer pipe damage prior to being informed of it.
As in many of these cases, issues develop without anyone being at fault. It seems reasonable for Mr Turnbull to have planted the trees where he did, 50 years ago. Ms Burgin purchased her property without the expectation of sewer pipe problems, but the property's condition when she purchased was similar to its current condition. When the issue became apparent, each party has done what they can - Ms Burgin by having pipes cleared; Mr Turnbull by removing the trees. Had Ms Burgin taken only the relevant issues to Mr Turnbull to seek resolution to the problem, rather than making spurious statements and claims regarding damage caused by his trees, it is possible that her sewer pipe could have been repaired promptly. Whether or not the Liquidambars would have required removal is not something I need to consider here.
Mr Turnbull has borne the cost of removing both trees. Ms Burgin shall bear the cost of repairing her sewer pipe.

Orders

As a result of the foregoing, the application is dismissed.

D Galwey 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: 10 August 2018

Burgin v Turnbull

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