Cattanach v Butler

The onsite hearing

1. Both parties attended the onsite hearing on 7 September 2023. Mr and Ms Cattanach were represented by Ms Julianne Carroll, Solicitor, while Ms Butler was self-represented.
2. Inspections were undertaken in the rear yards of both properties prior to the parties' submissions. Though I was satisfied that the trees had been removed effectively, the applicants submitted that the trunk of Tree 1 had previously grown against the fence and physically displaced it.

Jurisdictional requirements

1. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
2. The Court is obliged to consider a number of matters pursuant to s 10 which states: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (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.

Reasonable effort to reach agreement

1. The applicants first met the respondent and advised of damage from the tree at the respondent's property on 4 November 2022. Mr Butler returned the following day and the Cattanach's showed Mr Butler the visible damage to the fence, gutters, and paving and indicated the sewer pipe damage. The applicants said they asked Mr Butler to remove the tree and that he agreed, subject to discussion with Ms Butler. No personal contact or action by the respondent arose from this discussion.
2. Mr Cattanach next spoke with Ms and Mr Butler at the respondent's property on 4 February 2023, which both parties' affidavits involved a difficult interaction. Mr Cattanach spoke only with Mr Butler in again requesting that Mr Butler remove Tree 1. Ms Butler advised Mr Cattanach that she was the property owner and thus should be central to any negotiations. Mr Cattanach claimed to hitherto be unaware that Ms Butler owned the rental property exclusively. Apparently, the conversation became heated, after which the parties ceased personal dealings and subsequently communicated through solicitors.
3. Ms Butler's affidavit of 16 August 2023, provided detail of the site visits of November 2022 and February 2023 but primarily addressed the perceived rude conduct of Mr Cattanach and issues between the parties that were not relevant to the proceedings. Such information is only relevant to the Court in so far as it informs the requirement of the applicants to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated (at s 10(1)(a)).
4. By way of clarification, the following commentary provides explanation of the 'reasonable effort required to reach agreement'. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [191] - [192] (with my emphasis), Preston CJ notes: "191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": par 1.13, p 7. "192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order": par 2.46, p 33.
5. Further insight into the requirement of the applicant to make "a reasonable effort to reach agreement" is gained from the following discussion, at [41]-[45] of Ball v Bahramali [2010] NSWLEC 1334: "41 The making of orders presumes that the matter has been heard. Orders generally follow a judgment; even Consent Orders require a determination and a reason for agreement. The Act does not prescribe a time period for reaching an agreement or provide guidance on a reasonable effort. 42 The experience of the Court in these matters is that attempts by applicants to negotiate an agreement with their neighbour are often unsuccessful. This may be due to many factors including a flat refusal by a respondent to participate, ambit or unreasonable requests by an applicant, a history of previous disputes about other matters and cultural differences. 43 In a number of matters that have come before the Court, an applicant has made a single approach to a tree owner before the making of the application. There is a period of at least 21 days from the serving of the application until the preliminary/ directions hearing. The Court considers that this period is available for parties to negotiate an agreement. A number of disputes have settled before the directions hearing and the matter has been discontinued. Similarly, matters have been resolved and discontinued post directions hearing and prior to the date set for the final hearing. 44 The hearing also provides another opportunity for the parties to come to an agreement. In a number of matters, the parties have agreed on consent orders and the Court has concurred. 45 Therefore, while the initial approach was only some days prior to the filing of the application, there have been opportunities up until the end of the hearing for negotiations to occur. On the basis of this, I do not propose to dismiss the application on the basis on non-compliance with s 14E(1)(a)."
6. In this case, the applicants made multiple personal attempts to reach agreement, and the applicants' solicitors engaged in ongoing negotiations on their behalf. Commins Hendricks Solicitors sent a letter of demand on 10 March 2023. With no resolution reached, the application was lodged on 30 June 2023, more than three months later. The respondent instructed her solicitor to refuse service of application documents, thus the applicants lodged a Notice of Motion for substituted service, also on 30 June 2023. On 23 August 2023, the respondent's solicitor advised that payment would not be made for compensation for the applicants' alleged damage or for costs.
7. Considering the history of events, the extensive trail of correspondence preceding the hearing, and the hearing itself, I am satisfied that the requirements of s 10(1)(a) of the Act have been met: "that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated".
8. The applicants' evidence confirms the required service of documents on both the respondent, and Wagga Wagga Council, in satisfaction of s 10(1)(b) of the Act.

Did the tree/s cause the damage?

1. The applicants made no claim for 'risk of injury to a person' (s 10(2)(b)), so the key test is at s 10(2)(a) of the Act; whether the tree(s) has caused, is causing, or is likely in the near future, to cause damage to the applicant's property.
2. The trees were identified and 'aged' by Mark McCrone, a landscape architect and arborist, in a brief report prepared for the applicants, dated 8 August 2023. Mr McCrone acknowledged having read and agreeing to be bound by the Expert Witness Code of Conduct contained in Sch 7 of the Uniform Civil Procedure Rules 2005.
3. The stump of Tree 1, at least 500 millimetres (mm) in diameter, was visible on the respondent's land, close to the common boundary. Under the Act, the tree is the property of the owner of the land on which the majority of the tree base is located. An aerial photograph of the trees from Mr McCrone's report showed that the canopy of Tree 1 had extended over the applicants' land by about 4 metres (m) and well over the rear lane.

Damage by trunk and branches

1. Photographs from pp 5-8 of Ms Cattanach's affidavit displayed Tree 1's upper trunk and lower branches in firm contact with the boundary fence. Based on the photographs, and the arboricultural expertise I bring to the Court, the trunk diameter was estimated to be greater than 300 mm where the tree and fence made contact. Page 8 showed a narrow V shape opening at the junction of two boundary fence panels while the photograph on p 10 showed the fence bowed significantly towards the applicants' land.
2. Photographs of low branches in contact with the garage gutter, and the top of the gutter detached from the fascia and bent forward are shown on pp 14 and 15. Ms Butler did not contest the photographs.
3. At my site inspection, damage at the fence panel junction was visible, though the bowing towards the applicants' property had been reduced. The pattern of separation between the two fence panels was consistent with uplift of relatively light structures by root impact. The visible gutter damage was apparent and matched the applicants' photographs.
4. Consequently, I am satisfied that Tree 1 caused the fence damage and shed gutter damage, therefore s 10(2)(a) of the Act is engaged.

Damage by roots

1. On 17 November 2020, Nimmo Plumbing cleared the applicants' blocked sewer pipes. The plumber's invoice, included in Ms Cattanach's affidavit, noted "large amounts of tree roots found in boundary riser". In September 2021, after two subsequent plumbing interventions for sewer pipe clearance, Nimmo Plumbing investigated with CCTV (Pipecam) and located cracks in the sewer pipe. Pipe blockages were again cleared in December 2021, August 2022, and May 2023. The invoice for plumbing works in August 2022, by A. Smith Plumbing Service, indicated further Pipecam investigation to locate pipe cracking.
2. With claims of root damage, the Court encourages applicants to expose the causal link between roots and alleged damage though excavation. The garage floor and the adjacent paving was sealed, however, and the applicants undertook no excavation. Nonetheless, I was satisfied from the detail and consistency in seven plumbing invoices Ms Cattanach submitted, that tree roots were a cause of the sewer pipe blockages and cracking.
3. The respondent claimed that the roots could belong to neighbouring trees as the trees' roots had not been identified and noted that root identification was available locally. Around the site, there was a distinct absence of trees. The properties of the applicants and of neighbours across the back lane only contained shrubs which were relatively distant from the location of damage.
4. Based on the trees' stump sizes, and the applicants' array of large, clear photographs, it was apparent that the trees had been relatively large and vigorous. Both Tree 1 and Tree 3 grew very close to the common boundary. Considering this scenario, the tree roots that were repeatedly encountered and cleared by the plumbers, and the absence of any other trees of substance in the vicinity, I am satisfied, on the balance of probability, that the applicants' sewer pipe damage was caused by one or more of the respondent's trees. It is unnecessary to ascertain each tree's contribution to the damage, though the cite circumstances suggest Tree 1 as the primary cause.
5. Though the applicants' paving damage appeared relatively minor, paver uplift was pronounced near the base of Tree 1. Based on the proximity of the uplift to the tree, and the pattern of damage further afield, I was satisfied that roots of Tree 1 were a cause of paving uplift. Consequently, the requirements of s 10(2)(a) were met by damage to both the plumbing and the paving.
6. With s 10 satisfied, I am required to consider relevant discretionary matters in s 12 of the Act. 1. Having been removed prior to the hearing, consideration of the trees' environmental attributes and contributions was not required. 2. Section 12(h)(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. As the Court considers that a certain amount of wear and tear is expected to arise with any structure over time, the age and condition of the terracotta pipes is relevant. Considering that sewer pipes have usually been made of PVC since the 1970's-1980's, it is likely that the applicants' pipes were over 40 years' old and in a deteriorated condition. As a consequence, it is unreasonable for the respondent to pay the full repair or replacement cost. Instead, the plumbing costs shall be apportioned between the parties. The paving was also long established, so its reinstatement cost shall be similarly apportioned. Further, compensation arising from invoices for the plumbing pipe clearance is reasonable only for the period after the respondent was notified of the damage on 4 November 2022. As a result, compensation based on plumbing receipts shall apply only to the receipt of A. Smith Plumbing Service, dated 29 May 2023. Though the applicants endured difficulties in determining the respondent's contact details, I note an initial lack of urgency, as more than six months elapsed between the applicants' visit to the respondent's property agent and the subsequent visit to Wagga Wagga Council.

Conclusion

1. From the evidence submitted and observed on site, I have reached the following conclusions: 1. I was satisfied that the respondent's trees caused a range of damage to the applicants' property, and thus s 10 of the Act was engaged. The garage gutter shall be repaired at the respondent's expense. The boundary fence is relatively old and has largely been restraightened. As it remained fit for purpose and the raised fence junction near the base of Tree 1 may settle as roots decay, no orders for the fence are appropriate. 2. The terracotta sewer pipes were old and deteriorated. Therefore, the sewer pipes repair and replacement cost shall be apportioned, with 70% payable by the respondent and 30% by the applicants. This is consistent with the apportionment range in previous cases with similar circumstances. Compensation for past plumbing will be payable only for the single invoice, of the seven submitted, that was dated after the applicant notified the respondent about damage resulting from the trees. 3. Ms Butler is entitled to refute responsibility for damage by the tree/s. However, considering the applicants' photographs, upon even a cursory inspection, damage to both the common boundary fence and the shed gutter appeared obvious to 'the average person in the street'. 4. Similarly, conspicuous contact between the trunk of Tree 1 and the fence, and the tree's heavy branches resting on the gutter, also provided a visible causal relationship between the damage and Tree 1. In this context, the respondent's sustained inaction with the trees appeared unreasonable and the applicants' frustration with the resultant unnecessary delay seems unsurprising. 5. The applicants claimed reimbursement of costs, such as Mr McCrone's report, Court filing fees for a Notice of Motion for substituted service, and for legal representation. Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion with the Court, which is heard before a Registrar or a Judge.

Orders

1. The Court orders that: 1. Within 45 days of the date of these orders, the respondent may procure and supply to the applicants, one quotation for plumbing works by a licenced plumber with appropriate insurance, based on the same itemised specifications as the applicants' quote of 17 February 2023 from A. Smith Plumbing Service, and one quotation for paving reinstatement by a licenced landscape gardener with appropriate insurance. 2. Within 90 days of the date of these orders, the applicants shall have their sewer pipes replaced and repaired in accordance with specifications of the applicants' quote of 17 February 2023 from A. Smith Plumbing Services, and have their paving reinstated after completion of the plumbing works, in accordance with the estimate from Eric Kaiser, dated 22 February 2023. 3. Within 7 days of the completion of the plumbing and paving works, the applicants shall email copies of itemised paid invoices to the respondent. 4. Within 7 days of receipt of the paid invoices in Order (3), the respondent shall pay the applicants by electronic fund transfer, the sum of 70% of the cheapest of the quotes for plumbing works, provided that the respondent's quote met the requirements of Order (1), plus 70% of the cheapest of the quotes for paving reinstatement, provided that the respondent's quote met the requirements of Order (1), plus $365.00 compensation for sewer pipe clearance by A. Smith Plumbing on 29/5/2023. Should the respondent not supply quotes in accordance with Order (1), the applicants' quotes from A. Smith Plumbing Services and estimate from Eric Kaiser shall be the basis for compensation. 5. Within 60 days of the date of these orders, the respondent, or an employed contractor with appropriate insurance, shall reattach the applicants' shed gutter so it is fit for purpose. 6. The applicants shall provide the respondent with access for the repairs in Order (5), subject to 72 hours emailed notice. Should the applicants fail to grant all access requests made by the respondent within 60 days of the date of these orders, Order (5) shall lapse. 7. All works shall be completed during reasonable daytime working hours.

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: 15 February 2024