Calabro v Hartsuyker-Accardi

Have the trees caused damage?

1. The second jurisdictional test in these proceedings is at s 10(2) of the Trees Act. 10 Matters of which Court must be satisfied before making an order (1) … (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.

Damage to the sewer pipe

1. A sewer pipe on Ms Calabro's property stopped functioning in January 2021. A plumber was called. The plumber found roots blocking the terracotta sewer pipe. A root sample that was collected and later sent to the Royal Botanic Gardens was identified as a magnolia root. The Applicant's Bull Bay Magnolia is the only magnolia in the vicinity of the sewer pipe. A section of the pipe was replaced. The plumber told Ms Calabro that the remainder of the pipe was in good condition, but roots might enter the pipe again at the join between the PVC and terracotta sections of pipe.
2. After seeing the extent of root growth in her property, Ms Calabro engaged Alan Slinn, a civil and structural engineer, to assess her property and to determine if trees were contributing to property damage. Mr Slinn inspected the property several times between February 2021 and July 2021 and prepared four reports (the February report, the April report, the June report and the July report). Ms Calabro relies on these reports as 'expert reports' in these proceedings. The reports were not prepared as expert reports that meet the requirements of Sch 7 (r 31.23) of the Uniform Civil Procedure Rules 2005. Mr Slinn subsequently swore an affidavit on 28 January 2022 (Exhibit G) in which he stated that he has read the Expert witness code of conduct (Code) and did abide by the Code when preparing his reports. In the Court's mind, a later affidavit does not retrospectively change the status of Mr Slinn's reports to expert reports. While the Court might rely on information within the reports, they are not given the weight of expert reports.
3. By the end of his investigating and reporting, Mr Slinn was of the opinion that:

• Magnolia roots had damaged the Applicant's pipes;
• Damage near the Applicant's pool steps was likely to be caused by tree roots, and further damage is likely to occur; and
• Boundary walls are likely to be damaged by tree roots.

1. Mr Slinn expressed surprise that no damage to the Applicant's dwelling wall was apparent near the trees. He relied on theoretical 'zones of influence' to assert that the trees are likely to damage the dwelling. He surmised that the trees had damaged the dwelling in the past, but this had been patched over.
2. Ms Calabro also engaged Stephen Williams, consulting arborist, to assess and report on the trees. Like Mr Slinn, Mr Williams subsequently swore an affidavit on 31 January 2022 (Exhibit F) stating that his two reports were prepared as expert reports. They were not, and they are not given the weight of expert reports. In his report of 3 March 2021, Mr Williams concluded that installing a root barrier to prevent further root damage to Ms Calabro's property would result in the loss of the trees' structural roots, so tree removal was the only viable option to prevent damage. In a subsequent addendum to the report, Mr Williams identified that the trees were also "causing gutter clog", further supporting the need to remove both trees.
3. Tony Dockrill, an engineer engaged by the Respondent, inspected the site and prepared an expert report dated 11 March 2022. He inspected the sub-floor area and foundations of the Applicant's dwelling near the trees. He expressed the following opinions:

• Cracks observed in the Applicant's dwelling were hairline or fine cracks that do not require repair.
• The site soil is most likely a moderately reactive clay, and cracks in the dwelling are typical in such soils.
• Control joints are required in paved or tiled areas to allow for movement, but were absent in areas of tile or paver damage on the Applicant's property.
• Removing the magnolia and cypress trees might cause more significant damage to the Applicant's dwelling by causing changes to soil moisture levels.

1. Ms Hartsuyker-Accardi engaged Ian McKenzie, arborist, to assess the trees and prepare a report. Regarding the roots found in the pipe, Mr McKenzie wrote: "33. The damaged earthenware pipes in which roots were discovered are many decades old and are reaching (or arguably have reached) the end of their serviceable life. The pipes will have deteriorated with age and cracks may have developed and/or the joins may have broken down. 34. Whilst fine roots can penetrate gaps as little as 0.5 mm, greater root incursion will result through larger gaps (Moore, Bendel & May). In my opinion, roots of Magnolia grandiflora would not have infiltrated fully serviceable pipes. Deterioration due to the age of the pipes is likely to have allowed the initial incursion after which the gaps are likely to have enlarged due to secondary (radial) growth of the roots and the fine roots will have proliferated in the hospitable environment, eventually blocking the pipe. 35. In my opinion, if the earthenware pipes are replaced with PVC pipes, the roots will be extremely unlikely to penetrate the new pipe for many decades at least."
2. There can be little doubt that the magnolia has damaged Ms Calabro's property. I think Mr McKenzie's words above describe the most likely course of events: the magnolia's roots have grown outward from the tree; some have reached Ms Calabro's terracotta sewer pipe; due to its age, the terracotta pipe was likely to have cracks at joints, allowing root ingress; roots have proliferated in the favourable growing environment around and within the terracotta pipe.
3. This finding enlivens the Court's jurisdiction at s 10(2)(a) of the Trees Act, so orders can be made after the Court considers the matters at s 12. I find s 12(h) to be relevant here.
4. The Applicant engaged a plumber (Scott Murray Plumbing Pty Ltd) to replace the damaged section of earthenware pipe with a new PVC pipe. Mr Slinn found that the remaining section of earthenware pipe was in good condition. The Applicant submitted that the cost of replacing the remaining section of earthenware pipe, which is beneath paving, was excessive. However, according to Ms Calabro's plumber and Mr Slinn, roots might find their way into the pipe through the joints between PVC and earthenware sections. In response to this, Mr Dockrill thought that the plumber would have provided a proper seal at the joints and further root ingress is unlikely.
5. In my mind, Ms Calabro has taken reasonable action to prevent further damage to her sewer pipe. Nevertheless, Ms Hartsuyker-Accardi offered to contribute to the cost of replacing the remaining section of earthenware pipe with PVC pipe. That offer seems to me to be generous and neighbourly. Rather than accepting that offer, Ms Calabro determined to apply to the Court seeking orders for tree removal and compensation. The compensation she seeks in her application includes the plumber's costs, outlined in two invoices. The first of those (Exhibit H1) is dated 1 April 2021 and refers to investigation of a stormwater pipe, not a sewer pipe. Ms Calabro stated in her affidavit (Exhibit E) that her sewer pipe became blocked in January 2021. When I pointed out that the first plumbing invoice appeared to be unrelated to roots in the sewer pipe, Mr Williams, the Applicant's instructing solicitor, interjected, asking the rhetorical question: "Why would the plumber use CCTV if there was no root damage?" Ms Calabro then also kindly interjected, informing the Court that the first plumbing invoice was unrelated to any root damage to her sewer pipe. It is not clear, then, why the invoice was included in the application for compensation; and, suggests to me that the Applicant's claim is recklessly overreaching. Several items on the second plumbing invoice (Exhibit H2) dated 25 January 2021 also predate the January 2021 sewer blockage, so were not related to root damage. Items that possibly relate to root damage amount to $5,347.10 including GST. Mr Bland, counsel for the Applicant, asked for more time for the Applicant to provide further details to the Court. I rejected this request as the Applicant has had total control over the application for compensation, with the assistance of legal advice, but failed to clearly inform the Court of the costs related to root damage to her sewer pipe.

• The damaged pipe section was replaced with PVC, and the remaining earthenware section in good condition.
• Roots are unlikely to enter the new PVC pipe.
• If earthenware pipes are cracked and allow root ingress, they could be lined rather than replaced. This is a matter for the Applicant, who has had an opportunity to resolve the issue with assistance from the Respondent.

Damage to the dwelling

1. Turning to the Applicant's dwelling, none of the evidence presented by the Applicant demonstrates to the Court's satisfaction that roots of either the magnolia or the cypress have caused any damage to her dwelling. Mr Slinn quotes theoretical zones of tree root influence to assert that damage is likely to occur, but the steps that might demonstrate this (for instance, see Fang v Li [2017] NSWLEC 1503 at [59]) have not been undertaken. The mere presence of trees near a dwelling cannot satisfy the Court that the trees have caused damage, nor that they are likely in the near future to cause damage. For these reasons, the Court finds no grounds for ordering the removal of either the magnolia or the cypress.
2. The Applicant suggested broken tiles on the roof might have been caused by the magnolia's branches, but there was no evidence to satisfy the Court that this was so. Mr Williams was of the opinion that the magnolia's branches above the Applicant's dwelling might damage the roof. Small branches are close to, or make contact with, the roof and might cause minor damage. Mr McKenzie thought the risk of damage was low, but in my mind such damage could be avoided simply by pruning for one-metre clearance. In future, either the Applicant or Respondent can carry out similar pruning, so there is no need for Court to make ongoing orders to deal with this matter of routine maintenance.
3. Mr Williams also referred to the trees' leaves blocking the Applicant's roof gutters. As per the principle in Barker v Kyriakides [2007] NSWLEC 292, this is a matter of routine property maintenance that does not require orders from the Court.

Orders

1. As a result of the foregoing, the Court orders: 1. The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to prune their Bull Bay Magnolia (Magnolia grandiflora) within 30 days of the date of these orders to provide 1-metre of clearance between its branches and the Applicant's roof. The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work' and AS 4373 'Pruning of amenity trees'. 2. The Respondent is to provide the Applicant with at least 2 days' notice of the works. 3. The Applicant is to provide any access required to complete the works during reasonable hours of the day. 4. Within 30 days of the date of these orders, the Respondent is to pay the Applicant compensation of $2,673.55. 5. The exhibits are returned, other than A, E and 2.

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