Cheng v Robertson

Framework for this decision

1. The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act: 10 Matters of which Court must be satisfied before making an order (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.
2. Put simply, I can only make orders if, firstly, I find that the applicants made a reasonable effort to resolve the matter with the respondents and, secondly, that the respondents' mandarin tree damaged the applicants' stormwater pipe or is likely in the near future to damage their sewer pipe or other property on their land. As per Yang v Scerri [2007] NSWLEC 592 (at [14]), I regard a period of 12 months or so reasonably represents 'the near future'. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

Reasonable effort to reach agreement

1. JJJ Plumbing and Gas attended the applicants' property several times during August 2023 to investigate issues with their stormwater and then to replace a section of their stormwater pipe. Ms Cheng and Mr Bridge determined that their stormwater pipes had been damaged by roots of the Robertsons' mandarin tree, so thought that the Robertsons should contribute to the repair costs. They attempted to arrange meetings to discuss and resolve this. The descriptions of these meetings, and the reasons given for the failure of any resolution, vary widely between the parties. Ms Cheng and Mr Bridge feel they made significant and reasonable efforts to discuss the issues. The Robertsons feel they were ambushed, that they were not provided any opportunity to properly view the damage or to have it assessed, and that they were never shown any evidence that roots from their tree had damaged the pipe. They argued, therefore, that the applicants' efforts were not reasonable.
2. Ms Chang's and Mr Bridge's application for mediation with the Robertsons through the Community Justice Centres (CJC) was not accepted by the Robertsons. The Robertsons submitted that they did not know the intended subject of mediation. However, correspondence in evidence shows that Ms Cheng and Mr Bridge informed the Robertsons of root damage to their pipe, and that they would like to provide evidence of the damage. The applicants also informed the respondents that they would apply for mediation via the CJC.
3. From the various explanations of this issue in the affidavits, it is clear that communication between the neighbouring parties was fraught with difficulty. The police were called once. It seems to me that the nature of their communication was such that there was almost no likelihood that further discussions would result in a resolution. In such circumstances, and as Preston CJ referred to in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (at [195]), the requirement for reasonable effort might sensibly be satisfied. I find that Ms Cheng and Mr Bridge made a reasonable effort to reach agreement with the Robertsons.

Did the mandarin tree damage the stormwater pipe?

1. On this element of the application, I must not make any orders unless I am satisfied that the mandarin tree damaged the stormwater pipe. On a relatively straightforward analysis of the evidence, I am not satisfied of this.
2. The mandarin tree (Citrus reticulata) is less than 5 metres tall and grows in the Robertsons' back garden adjacent to the paling fence along the rear section of the common boundary. A short distance to the southwest of the tree, the paling fence comes to an end where the applicants' and respondents' shared driveway runs between their dwellings to the street frontage. The applicants' stormwater and sewer pipes pass within a few metres of the mandarin tree. Their stormwater pipe was repaired in August 2023 after it became blocked. The area was then repaved.
3. The applicants rely on some photographs of tree roots and on the oral evidence of Mr Jea Jea.
4. Mr Jea Jea had carried out the 2023 repair works to the applicants' stormwater pipe. He pointed out the areas where damaged earthenware pipe was removed. The applicants submitted that they had no issues with the stormwater pipe in the 16 years prior to August 2023, when it suddenly became blocked. In their application, they wrote that a plumber was called. After using a camera to explore the pipe at the area of damage, the plumber's camera "…showed the presence of mandarin roots". Copies of the plumber's in-pipe photographs included in the original application have the caption: "Exploratory camera image identifying mandarin roots." I cannot determine from the photographs that the roots are from a mandarin tree and nobody else has identified the roots.
5. Mr Jea Jea explained during the hearing that he did not, and could not, positively identify the roots, but he assumed the roots he saw belonged to the mandarin tree, as it was the only tree nearby, and he thought their appearance was consistent with such a tree.
6. The Robertsons pointed out young palm tree shoots on their property. They explained that these shoots continuously appear and that they result from a network of roots remaining from several large palm trees removed many years ago. The applicants argued that they have lived here for 16 years, and they know the previous owner of their property, who removed no palms. Therefore, they asserted in their final submissions, there have been no palm trees on their property for more than 20 years and palm roots would not survive that long after tree removal. (I note that in their application they wrote that Mr Bridge removed a palm tree from the middle of their yard approximately 13 years ago.) Mr Rennie, the arborist engaged by the Robertsons, gave evidence that even though specific roots in some of the applicants' photographs may be from the mandarin tree, he observed, in photographs of soil beneath the common boundary fence, roots that were clearly palm roots. He thought the palm shoots on the Robertsons' property appeared to be cocos palms. I observed the palm shoots and the photographs to which he referred and, relying on my own arboricultural expertise, I am persuaded by Mr Rennie's evidence. Palm roots are, and were, present in the vicinity of the pipe damage.
7. Mr Warner, the arborist engaged by Ms Cheng and Mr Bridge, included in his report a photograph of roots captioned: "Tree roots which have previously been removed from subject drain during plumbing works." They may be mandarin roots, or not, but there is no evidence that those roots were taken from within the pipe, rather than from the surrounding soil during excavation works.
8. If the applicants' stormwater pipe was damaged by tree roots, the origin of those roots cannot be determined. But that is not the most adverse finding on this element of the application.
9. Following the stormwater repair works, JJJ Plumbing and Gas submitted an invoice on 18 August 2023 (in Exhibit H). I copy here the first item on the invoice (with my emphasis in bold): "Friday 12/8/23 camera inspection to locate problem. Bricks and rubbish found on left hand side of property in stormwater pipe in ground."
10. The second item on the invoice is (with my emphasis in bold): "Tuesday 15/8/23 Excavate rear of driveway and locate broken stormwater pipe. Repair approximately 3 m and backfill and concrete area."
11. Subsequent items on this invoice refer to repair works then carried out, equipment hired and materials purchased and the cost of labour, until a final note states: "Due to the mandarin tree next door the stormwater system has failed and needs upgrading."
12. Despite the final note, the invoice only identified bricks and rubbish in the pipe, which was already broken.
13. Mr Jea Jea was questioned on the pipe and what he found. As he described, the pipe was unusual and very old. Rather than the usual earthenware pipes found in many properties built before the adoption of PVC pipes, the applicants' stormwater pipe was drilled with holes at the time of manufacture, to allow water to soak into the surrounding soil. This is 'not ideal', as he explained, as the holes allow soil and roots to infiltrate the pipe, "as has occurred here". As per his description on the invoice, and as contemporaneous photographs show, the pipe was filled with soil. While roots can also be seen within the pipe, there is nothing to demonstrate that they, firstly, broke or damaged the pipe and, secondly, obstructed the pipe.
14. The Robertsons have lived here for many years, in particular Mr Robertson, whose father once owned their property. Mr Robertson, a retired plumber, submitted that he was present when the subject stormwater pipe was installed over 30 years ago by the then owners of the applicants' property. He recalls his then neighbours installed old, pre-used, salt-glazed pipes, with holes as described by Mr Jea Jea, without mortar applied at the joints. Mr Robertson was surprised the pipes lasted as long as they did. Mr Robertson's account is entirely consistent with Mr Jea Jea's description of the pipe.
15. It seems the applicants' stormwater pipe became blocked as a result of its own nature, allowing soil and roots to infiltrate the pipe. At least one photograph suggests it was mostly soil, not roots, that then blocked the pipe.
16. The Robertsons submitted that they have demonstrated that their tree's roots did not damage the pipe. I cannot be sure that the mandarin's roots played no part in the damage, however, on the limited evidence before me, I am not satisfied that the mandarin tree's roots caused damage to the pipe. On this element of the application, I cannot make orders.

Is the mandarin tree likely to damage the applicants' property?

1. Ms Cheng and Mr Bridge allege that roots from the mandarin tree are likely to damage their nearby sewer pipe. Had the evidence of damage to their stormwater pipe been overwhelming, I may need to give this element of their application greater consideration. However, there is nothing in evidence to satisfy me that such damage is likely in the near future. The applicants' stormwater pipe is now entirely of PVC, whereas sections of their sewer are of old earthenware pipe. Not only have the applicants carried out no investigation to show the condition of the sewer pipe, or the proximity of tree roots, they seek an order for the respondents to pay for some investigation. There are no grounds for such an order.
2. The applicants rely on Mr Warner's report (Exhibit G), where at page 10 he wrote: "There is always an inherent risk associated to infrastructure by trees as they usually grow where conditions are favourable and will become invasive to property when seeking out a source of moisture and sunlight. The trees retention value using the (S.T.A.R.S) (Appendix C) is of low significance due to the potential damage to building infrastructure. This tree is not considered significant or worthy of any special measures to ensure its preservation. It is of my belief that this tree is to be removed (S.U.L.E)(4f)."
3. That is the extent of Mr Warner's observations and discussion specific to the likelihood of future pipe damage.
4. I am not satisfied that the mandarin tree is likely to damage the applicants' sewer pipe in the near future.
5. Now that the applicants' stormwater pipe is entirely PVC, it is unlikely that roots will damage it.
6. The other element of Ms Cheng's and Mr Bridge's application concerns paving on their land near the Robertsons' mandarin tree. Further to the rear of the boundary, a low brick retaining wall runs along or close to the common boundary for some 16 metres from the rear boundary, stopping a little short of the mandarin tree. The paling fence atop the retaining wall continues further along the boundary, past the mandarin tree where there is no retaining structure despite the difference in ground level between the two properties. Mr Melville described the retaining wall as being in good condition, suitable for its purpose. Ms Cheng and Mr Bridge submitted that near the tree, where there is no retaining wall, soil is washing away and the edge of their paving is slumping.
7. It appears the need for a retaining wall arose when the rear of the applicants' land was developed some years ago with an outbuilding and a driveway constructed above natural grade. If that is so, the responsibility for retaining the newly raised land surely lay with the owners of the land. Even if I am wrong on that, the condition of the applicants' paving has nothing to do with the mandarin tree. If anything, as the Robertsons submitted, the tree is assisting with soil stability there. Submissions were made about the impact that the tree's removal would have on soil stability and the paving, but as I am not making an order for tree removal, that is not something I must consider here.
8. Because I am not satisfied that the Robertsons' mandarin tree is likely to damage any of Ms Cheng's and Mr Bridge's property in the near future, I cannot make any orders on this element of the application.
9. It follows that no orders can be made in these proceedings, so there is no need for me to consider the matters at s 12 of the Trees Act.

Other matters

1. The parties referred to a 'sinkhole' that appeared on the applicants' property in their affidavits and submissions. If the sinkhole resulted from the stormwater pipe blockage, it follows from my earlier findings that the evidence does not demonstrate any causation by the mandarin tree. If not caused by the blockage, there is no evidence that the tree's roots caused the sinkhole via other means.
2. Affidavits and submissions referred to whether or not one of the applicants had tried to poison the mandarin tree. If (a) the tree had caused or is likely to cause damage to the applicant's property, and (b) poisoning of the tree might have led to the need to remove the tree, then this would be something to consider when making any orders, especially when determining who would pay for removing the tree: see Joaquim v Adamson [2009] NSWLEC 1312. This is not the case in these proceedings, so I have left that issue alone.
3. The parties referred to the applicants' intention to prune the mandarin tree's branches overhanging their property. This is not relevant to this decision, as it does not involve damage to the applicants' property, nor any other jurisdictional matter arising from the application, but was referred to in affidavits and submissions. As it seemed likely to be a matter of ongoing dispute, I offered my view of the situation considering common law and the Georges River Development Control Plan 2021: if the mandarin tree is a domestic tree grown for the purpose of fruit production, it is exempt from requiring Georges River Council's consent for pruning or removing it, so overhanging branches could be pruned by the applicants as per their common law right of abatement. Nevertheless, this is best done in a cooperative, non-confrontational manner where possible.

Orders

1. The Court orders: 1. The application is refused. 2. The exhibits are returned, other than Exhibits A and B.

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: 02 May 2024

1. Put simply, I can only make orders if, firstly, I find that the applicants made a reasonable effort to resolve the matter with the respondents and, secondly, that the respondents' mandarin tree damaged the applicants' stormwater pipe or is likely in the near future to damage their sewer pipe or other property on their land. As per Yang v Scerri [2007] NSWLEC 592 (at [14]), I regard a period of 12 months or so reasonably represents 'the near future'. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

1. JJJ Plumbing and Gas attended the applicants' property several times during August 2023 to investigate issues with their stormwater and then to replace a section of their stormwater pipe. Ms Cheng and Mr Bridge determined that their stormwater pipes had been damaged by roots of the Robertsons' mandarin tree, so thought that the Robertsons should contribute to the repair costs. They attempted to arrange meetings to discuss and resolve this. The descriptions of these meetings, and the reasons given for the failure of any resolution, vary widely between the parties. Ms Cheng and Mr Bridge feel they made significant and reasonable efforts to discuss the issues. The Robertsons feel they were ambushed, that they were not provided any opportunity to properly view the damage or to have it assessed, and that they were never shown any evidence that roots from their tree had damaged the pipe. They argued, therefore, that the applicants' efforts were not reasonable.
2. Ms Chang's and Mr Bridge's application for mediation with the Robertsons through the Community Justice Centres (CJC) was not accepted by the Robertsons. The Robertsons submitted that they did not know the intended subject of mediation. However, correspondence in evidence shows that Ms Cheng and Mr Bridge informed the Robertsons of root damage to their pipe, and that they would like to provide evidence of the damage. The applicants also informed the respondents that they would apply for mediation via the CJC.
3. From the various explanations of this issue in the affidavits, it is clear that communication between the neighbouring parties was fraught with difficulty. The police were called once. It seems to me that the nature of their communication was such that there was almost no likelihood that further discussions would result in a resolution. In such circumstances, and as Preston CJ referred to in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (at [195]), the requirement for reasonable effort might sensibly be satisfied. I find that Ms Cheng and Mr Bridge made a reasonable effort to reach agreement with the Robertsons.

Did the mandarin tree damage the stormwater pipe?

1. On this element of the application, I must not make any orders unless I am satisfied that the mandarin tree damaged the stormwater pipe. On a relatively straightforward analysis of the evidence, I am not satisfied of this.
2. The mandarin tree (Citrus reticulata) is less than 5 metres tall and grows in the Robertsons' back garden adjacent to the paling fence along the rear section of the common boundary. A short distance to the southwest of the tree, the paling fence comes to an end where the applicants' and respondents' shared driveway runs between their dwellings to the street frontage. The applicants' stormwater and sewer pipes pass within a few metres of the mandarin tree. Their stormwater pipe was repaired in August 2023 after it became blocked. The area was then repaved.
3. The applicants rely on some photographs of tree roots and on the oral evidence of Mr Jea Jea.
4. Mr Jea Jea had carried out the 2023 repair works to the applicants' stormwater pipe. He pointed out the areas where damaged earthenware pipe was removed. The applicants submitted that they had no issues with the stormwater pipe in the 16 years prior to August 2023, when it suddenly became blocked. In their application, they wrote that a plumber was called. After using a camera to explore the pipe at the area of damage, the plumber's camera "...showed the presence of mandarin roots". Copies of the plumber's in-pipe photographs included in the original application have the caption: "Exploratory camera image identifying mandarin roots." I cannot determine from the photographs that the roots are from a mandarin tree and nobody else has identified the roots.
5. Mr Jea Jea explained during the hearing that he did not, and could not, positively identify the roots, but he assumed the roots he saw belonged to the mandarin tree, as it was the only tree nearby, and he thought their appearance was consistent with such a tree.
6. The Robertsons pointed out young palm tree shoots on their property. They explained that these shoots continuously appear and that they result from a network of roots remaining from several large palm trees removed many years ago. The applicants argued that they have lived here for 16 years, and they know the previous owner of their property, who removed no palms. Therefore, they asserted in their final submissions, there have been no palm trees on their property for more than 20 years and palm roots would not survive that long after tree removal. (I note that in their application they wrote that Mr Bridge removed a palm tree from the middle of their yard approximately 13 years ago.) Mr Rennie, the arborist engaged by the Robertsons, gave evidence that even though specific roots in some of the applicants' photographs may be from the mandarin tree, he observed, in photographs of soil beneath the common boundary fence, roots that were clearly palm roots. He thought the palm shoots on the Robertsons' property appeared to be cocos palms. I observed the palm shoots and the photographs to which he referred and, relying on my own arboricultural expertise, I am persuaded by Mr Rennie's evidence. Palm roots are, and were, present in the vicinity of the pipe damage.
7. Mr Warner, the arborist engaged by Ms Cheng and Mr Bridge, included in his report a photograph of roots captioned: "Tree roots which have previously been removed from subject drain during plumbing works." They may be mandarin roots, or not, but there is no evidence that those roots were taken from within the pipe, rather than from the surrounding soil during excavation works.
8. If the applicants' stormwater pipe was damaged by tree roots, the origin of those roots cannot be determined. But that is not the most adverse finding on this element of the application.
9. Following the stormwater repair works, JJJ Plumbing and Gas submitted an invoice on 18 August 2023 (in Exhibit H). I copy here the first item on the invoice (with my emphasis in bold):

"Friday 12/8/23 camera inspection to locate problem. Bricks and rubbish found on left hand side of property in stormwater pipe in ground."

1. The second item on the invoice is (with my emphasis in bold):

"Tuesday 15/8/23 Excavate rear of driveway and locate broken stormwater pipe. Repair approximately 3 m and backfill and concrete area."

1. Subsequent items on this invoice refer to repair works then carried out, equipment hired and materials purchased and the cost of labour, until a final note states:

"Due to the mandarin tree next door the stormwater system has failed and needs upgrading."

1. Despite the final note, the invoice only identified bricks and rubbish in the pipe, which was already broken.
2. Mr Jea Jea was questioned on the pipe and what he found. As he described, the pipe was unusual and very old. Rather than the usual earthenware pipes found in many properties built before the adoption of PVC pipes, the applicants' stormwater pipe was drilled with holes at the time of manufacture, to allow water to soak into the surrounding soil. This is 'not ideal', as he explained, as the holes allow soil and roots to infiltrate the pipe, "as has occurred here". As per his description on the invoice, and as contemporaneous photographs show, the pipe was filled with soil. While roots can also be seen within the pipe, there is nothing to demonstrate that they, firstly, broke or damaged the pipe and, secondly, obstructed the pipe.
3. The Robertsons have lived here for many years, in particular Mr Robertson, whose father once owned their property. Mr Robertson, a retired plumber, submitted that he was present when the subject stormwater pipe was installed over 30 years ago by the then owners of the applicants' property. He recalls his then neighbours installed old, pre-used, salt-glazed pipes, with holes as described by Mr Jea Jea, without mortar applied at the joints. Mr Robertson was surprised the pipes lasted as long as they did. Mr Robertson's account is entirely consistent with Mr Jea Jea's description of the pipe.
4. It seems the applicants' stormwater pipe became blocked as a result of its own nature, allowing soil and roots to infiltrate the pipe. At least one photograph suggests it was mostly soil, not roots, that then blocked the pipe.
5. The Robertsons submitted that they have demonstrated that their tree's roots did not damage the pipe. I cannot be sure that the mandarin's roots played no part in the damage, however, on the limited evidence before me, I am not satisfied that the mandarin tree's roots caused damage to the pipe. On this element of the application, I cannot make orders.

Is the mandarin tree likely to damage the applicants' property?

1. Ms Cheng and Mr Bridge allege that roots from the mandarin tree are likely to damage their nearby sewer pipe. Had the evidence of damage to their stormwater pipe been overwhelming, I may need to give this element of their application greater consideration. However, there is nothing in evidence to satisfy me that such damage is likely in the near future. The applicants' stormwater pipe is now entirely of PVC, whereas sections of their sewer are of old earthenware pipe. Not only have the applicants carried out no investigation to show the condition of the sewer pipe, or the proximity of tree roots, they seek an order for the respondents to pay for some investigation. There are no grounds for such an order.
2. The applicants rely on Mr Warner's report (Exhibit G), where at page 10 he wrote:

"There is always an inherent risk associated to infrastructure by trees as they usually grow where conditions are favourable and will become invasive to property when seeking out a source of moisture and sunlight. The trees retention value using the (S.T.A.R.S) (Appendix C) is of low significance due to the potential damage to building infrastructure. This tree is not considered significant or worthy of any special measures to ensure its preservation. It is of my belief that this tree is to be removed (S.U.L.E)(4f)."

1. That is the extent of Mr Warner's observations and discussion specific to the likelihood of future pipe damage.
2. I am not satisfied that the mandarin tree is likely to damage the applicants' sewer pipe in the near future.
3. Now that the applicants' stormwater pipe is entirely PVC, it is unlikely that roots will damage it.
4. The other element of Ms Cheng's and Mr Bridge's application concerns paving on their land near the Robertsons' mandarin tree. Further to the rear of the boundary, a low brick retaining wall runs along or close to the common boundary for some 16 metres from the rear boundary, stopping a little short of the mandarin tree. The paling fence atop the retaining wall continues further along the boundary, past the mandarin tree where there is no retaining structure despite the difference in ground level between the two properties. Mr Melville described the retaining wall as being in good condition, suitable for its purpose. Ms Cheng and Mr Bridge submitted that near the tree, where there is no retaining wall, soil is washing away and the edge of their paving is slumping.
5. It appears the need for a retaining wall arose when the rear of the applicants' land was developed some years ago with an outbuilding and a driveway constructed above natural grade. If that is so, the responsibility for retaining the newly raised land surely lay with the owners of the land. Even if I am wrong on that, the condition of the applicants' paving has nothing to do with the mandarin tree. If anything, as the Robertsons submitted, the tree is assisting with soil stability there. Submissions were made about the impact that the tree's removal would have on soil stability and the paving, but as I am not making an order for tree removal, that is not something I must consider here.
6. Because I am not satisfied that the Robertsons' mandarin tree is likely to damage any of Ms Cheng's and Mr Bridge's property in the near future, I cannot make any orders on this element of the application.
7. It follows that no orders can be made in these proceedings, so there is no need for me to consider the matters at s 12 of the Trees Act.

1. The parties referred to a 'sinkhole' that appeared on the applicants' property in their affidavits and submissions. If the sinkhole resulted from the stormwater pipe blockage, it follows from my earlier findings that the evidence does not demonstrate any causation by the mandarin tree. If not caused by the blockage, there is no evidence that the tree's roots caused the sinkhole via other means.
2. Affidavits and submissions referred to whether or not one of the applicants had tried to poison the mandarin tree. If (a) the tree had caused or is likely to cause damage to the applicant's property, and (b) poisoning of the tree might have led to the need to remove the tree, then this would be something to consider when making any orders, especially when determining who would pay for removing the tree: see Joaquim v Adamson [2009] NSWLEC 1312. This is not the case in these proceedings, so I have left that issue alone.
3. The parties referred to the applicants' intention to prune the mandarin tree's branches overhanging their property. This is not relevant to this decision, as it does not involve damage to the applicants' property, nor any other jurisdictional matter arising from the application, but was referred to in affidavits and submissions. As it seemed likely to be a matter of ongoing dispute, I offered my view of the situation considering common law and the Georges River Development Control Plan 2021: if the mandarin tree is a domestic tree grown for the purpose of fruit production, it is exempt from requiring Georges River Council's consent for pruning or removing it, so overhanging branches could be pruned by the applicants as per their common law right of abatement. Nevertheless, this is best done in a cooperative, non-confrontational manner where possible.

(1) The application is refused.

(2) The exhibits are returned, other than Exhibits A and B.