Colling v Wilson [2009] NSWLEC 1061 | Case summary

1 COMMISSIONERS: In this case an application has been made by Mr and Mrs Colling for an order for removal of five Leighton Green tree's located on the adjacent property. These trees are some 10 to 13 years old and are located toward the rear of the property owned by Mr and Mrs Wilson. 2 The application also seeks compensation for a number of blockage clearances of the sewer pipes on the Collings' property and seeks an order for replacement of portion of the corrugated fibre cement fence between the two properties. The application also seeks reimbursement for a number of reports and the Court application fee. 3 We turn first to deal with this matter as it is most easily disposed off. Commissioners of the Court are not given delegation by the Chief Judge, pursuant to s 36 of the Land and Environment Court Act 1979, to deal with applications for costs or for the provision of reports and the like falling within the definition of costs. If Mr and Mrs Colling wish to make a separate application to the Court based on the outcome of these proceedings for any costs order that is required to be by Notice of Motion which is heard and determined by a Judge of the Court. 4 We turn next to the question of the fence between the two properties. Mr and Mrs Wilson put in contest the question of the location of the fence. Mr Wilson has provided a survey in the proceedings which includes a notation that there are fencing irregularities in the boundary fence between either the Collings property and the Wilson's property or the Wilson's property and other adjoining properties. This survey is a comparatively recent one (being prepared, it would appear, for the purposes of the sale of the Wilson's property). 5 Mr and Mrs Colling have put in evidence, primarily for the purposes of showing the location of the sewer line between the properties, a survey done in 1963 which shows that at that time the fence between the Colling and Wilson properties was on the boundary. However, in response to a question, Mr Colling indicated that the fence that was the subject of a 1963 survey was not the present fence between the properties. 6 As a consequence, as a result of the material contained in the survey provided by Mr Wilson and the note on that survey by the surveyor, we cannot be satisfied (as we are obliged to be by the Act) that the fence is, in fact, at the relevant points located on the boundary and is therefore partially on the Collings' property. 7 This Court has no jurisdiction under the Dividing Fences Act 1991 to deal with conventional claims relating to damage to or the adequacy or inadequacy of dividing fences between properties. Therefore, as a consequence of not being satisfied that that fence is on the boundary rather than being on the Wilson's property, we are not prepared to make any order with respect to the fence. 8 If we are wrong on this jurisdictional point we note that: o the fence appears to be in generally poor repair; and o on the Collings' side of the fence, there are a number of horizontal wooden elements that are holding the fence in place that appear to be substantially rotted and in very poor maintenance. 9 We would not, as a matter of discretion, be minded to make any order with respect to the fence on that basis as we cannot be entirely satisfied that the sag and lean of the fence at the point is caused by the tree rather than the poor condition of the fence itself. 10 Finally, we note that the Collings daughter Ms Hain-Collings said, when we raised with her the extent of the quotation for repair of the fence, that the quotation went significantly beyond any element of the fence that could be claimed to have been damaged by the tree and that that was for aesthetic reasons. We would, therefore, not be prepared to accept the claim for the fence on the basis that it represents a claim that goes well beyond anything that was reasonable to rectify any damage which might have been caused by the trees (had we been so satisfied) and had we been satisfied that the relevant portion of the fence was at least partially on the Collings' property. 11 We turn to the damage to the sewer. We have been provided with a DVD that shows that the sewer had a number of blockages by tree roots. 12 Mr and Mrs Wilson did not have the opportunity to examine the DVD prior to the hearing for reasons which we accept were not the fault of Mr and Mrs Colling but lie within the Courts filing system. As a consequence, we provided Mr and Mrs Wilson with the opportunity to take a break in the proceedings to look at the DVD. The DVD shows a number of locations in the pipe where the are roots were intruding - usually through joints but in one or two locations through what might be breaks in the existing terracotta sewer piping. 13 The tree roots are consistent generally with being roots from the pine trees and are not consistent, given their location in the CCTV camera footage, with being roots from the palm trees which are closer to the front of the two properties. We are satisfied, on the basis of the tests in s 10(2)(a) of the Act we are required to consider, that these trees have in the past caused damage to the Collings' property with the consequence that the jurisdiction of the Court is enlivened to deal with the trees. 14 We therefore turn to consider what, if any, orders we should make concerning the trees and/or the sewer. The trees provide, on the evidence given by the Wilsons, a screen for their property from the nearby high-rise block of units. Although the Collings raised the question of the height to which the trees might grow; the spread that they might obtain; and the fact that they might constitute a visual wall to their property are not matters that are within the jurisdiction of the Court unless they give rise to matters satisfying one or other of the tests under section 10(2) of the Act. We have seen nothing in these proceedings that would cause us to conclude that that was the case. 15 We note however that nothing that might arise from our decision would act in any way to inhibit any rights that, subject to the local council's tree preservation order, the Collings might have to prune the trees to the boundary nor, we also note, does any decision we make today based on the facts and circumstances as we have inspected them prevent Mr and Mrs Colling making some future application to the Court if circumstances change and one or more of the tests under section 10(2) of the Act is subsequently satisfied as a consequence of those changes. 16 We turn therefore to what to do to the sewer and/or the trees. We indicated to the parties that we were minded not to order removal of the trees as they had an aesthetic value to the Wilsons if it was possible to resolve the problem in some other fashion. 17 We have heard uncontradicted evidence from Mr McGuiness, the plumber who had been engaged by the Collings at the time of the most recent clearance (undertaken by him in November 2008) that the camera footage was taken showing the various blockages at that time. 18 Mr and Mrs Wilson had also been on notice since at least early 2006 about the concerns that the Collings have about roots in their sewer. We are satisfied that they had not, at least to our understanding, taken any constructive apart to assist in resolving the issues of the Collings' sewer. As a consequence, the Wilsons should be required to meet the costs of the clearing of the sewer line that took place in November 2008. The total of that cost (setting aside the DVD footage and report for the purposes of the proceedings - as that is an element of costs rather than compensation) comes to $810 and we order that the Wilson's pay to the Collings the sum of $810 within 28 days of the date of these proceedings and that the liability for the payment be joint and several. 19 We turn to the question of the claim for the work that was undertaken to clear the sewer in 2003 (being work undertaken by Bondi Emergency Plumbing). The date of that receipt indicates that it was work carried out prior to the Wilsons being notified about the problem of the tree roots and we therefore decline to make any order for reimbursement of that amount. 20 We are satisfied on the basis of our inspection of the trees and the evidence given us by Mr Wilson that, if it were possible to do so, it would be appropriate to deal with the issue of the sewer rather than order the removal of the trees. 21 Mr McGuiness gave evidence that it would be possible to rectify the problem. We accept his evidence that either replacement of the existing clay pipes for a length of some 8.5 metres or so would be one option, as would the relining of the pipes for the same length. It was his evidence, doing as best he could under the circumstances, that the cost of relining would be somewhere in the vicinity of $10,000 and that the plumbing costs associated with the replacement of that section of the line would be somewhere in the order of $6000. 22 However, as that latter estimate did not include any costing for landscaping, replacing of concrete elements, paving and the like that would need to be removed as part of that process and the replacement and landscaping of them, we therefore accept that, within the informality of the figures that necessarily attend consideration of these matters at on-site hearings, the likely cost of replacing the pipes with PVC pipes and the likely cost of relining of the pipes are sufficiently close to being an equal that we should treat $10,000 as an upper limiting amount for the cost of either of those options. 23 We therefore turn to the question of whether or not we should order the Wilsons to pay, by way of reimbursement, for any or all of the cost of carrying out that work if it were to be undertaken by the Collings. Put on the half of the Collings is the proposition that it is the roots of the trees that are causing the blockage and thus, as a consequence, the total cost should be borne by the Wilsons. Put by Mr Wilson is the fact that the pipes, on Mr McGuiness's uncontradicted evidence, are at least 40 years old and that at the time the work was done on the partial replacement of the rear portion of the clay pipes with PVC it would have been prudent to have undertaken a full replacement process through to the house. 24 We have, in a number of these cases, considered the question of PVC pipe and root blockages. In the first case determined under the Act, in early 2007, P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, dealt with precisely this issue and the need for appropriate apportionment based the state of the pipes and on the time after notice was of blockage given to the tree owner. 25 We accept that the Collings were aware of blockages to the pipes from 2005 onwards and the Wilsons were aware from 2006 onwards. The age of the pipes; the fact that they are traditionally jointed with a cement jointing (as was submitted by Mr Wilson); and the fact that that cement jointing deteriorates over the years, causes us to conclude (as we have in other cases) that there is a deterioration in the effective life of such pipes over time. 26 However, that deterioration, in this case, is also compounded by and impacted upon by the roots of the Wilsons' trees. We consider it appropriate to make orders that would permit Mr and Mrs Colling to choose whether or not they wish to reline the pipes or replace the pipes; to require that, if that is done within a 12 month period, the Wilsons should make a contribution to it; the liability for that could be joint and several; and that if the Wilsons sell their property in the intervening period of time, they have an obligation to notify Mr and Mrs Colling where they can be served with the notices in the orders we proposed to make. 27 We consider under the circumstances that it is appropriate to provide an upper limit on the amount to be reimbursed that would be 50% of the cost that we have accepted is a reasonable estimate based on Mr McGuiness's evidence. We therefore make the following orders: 1. The claim with respect to the fence is dismissed. 2. With respect to past sewer clearances, the Wilsons are jointly and severally liable to pay the sum of $810 to the Collings within 28 days of this hearing. 3. If Mr and Mrs Colling undertake the work either of relining or replacing their household sewer line with either an appropriate lining or PVC replacement pipe from the existing PVC pipe to a point at least 8.5 m toward the street from that point, the Wilsons are liable to pay to the Collings half of the amount of that work being undertaken (to a maximum of $5000) within 28 days of their being provided with a receipted account that the work has been undertaken. 4. If such receipt account is not presented to the Wilsons within 12 months of the date of this hearing this order lapses. 5. Mr and Mrs Wilson are each ordered to provide to the Collings, in the event of a sale of the Wilsons' property, an address at which the receipted invoice foreshadowed these orders can be served upon them for the purposes of making a claim under these orders.

Colling v Wilson

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Judgment (12 paragraphs)

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