Edwards v Lamphee & anor

Land and Environment Court (NSW)|2012-07-26

Mr Graham Kinsey, G. A. Kinsey (Respondents in person) File Number(s): 20304 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: Mr Edwards has lived at his Roselands property since about 1985. At the time he purchased his property there was a Jacaranda tree growing on an adjoining property. Since then Mr Edwards has paid for repair works to a sewer pipe and repair works to his rear boundary fence. He says the damage to these structures was caused by the Jacaranda and has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of the tree to prevent further damage and for compensation for the repair works. He also seeks orders to be reimbursed for the costs of an arborist report, a council tree permit application and Court fees, however Commissioners do not have the power to award costs, so that requires a Notice of Motion to be heard by a Judge should Mr Edwards wish to pursue that. 2Mr and Mrs Lamphee have lived at their property since 1973, at which time the Jacaranda was growing in their property near the rear boundary. They enjoy the benefits offered by the tree and do not wish to remove it. They dispute that the tree has caused damage to Mr Edwards' property. 3Before any orders can be made I must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property. If so satisfied, I must then consider matters set out in s 12 of the Act before making orders as I see fit to remedy, restrain or prevent damage to the applicant's property as a consequence of the tree. 4The hearing took place on site, allowing a view of the tree, the fence and the applicant's property.

Preliminary matters 5At the outset of the hearing there were concerns raised by both parties about procedural issues. Mr Kinsey stated that the Lamphees had not been notified 21 days prior to the application being lodged, as required by s 8(1) of the Act. According to s 8(3), however, the Court may waive such requirement. I note that Mr Edwards is self-represented and followed the directions of the Court. No action of Mr Edwards has hindered the Lamphees' ability to respond to the application. Based on this, the issue is not significant and will not be considered further. 6In an effort to answer questions raised by the respondents in their filed evidence, Mr Edwards filed further material after the date specified in Direction 6 of 22 May 2012. This material is not relied upon as evidence and Mr Edwards was informed that he should raise any material there in his submissions if he would like it to be heard.

Timeline 7A timeline outlining the key dates is often helpful in these matters.

Pre-1970: the Jacaranda grew on the Lamphees' property.
1973: the Lamphees purchased their property.
1985: Mr Edwards purchased his property.
2004: 3 palms were removed from Mr Edwards' property.
2004: Mr Edwards' plans for a garage were approved.
2005: Mr Edwards' new garage was constructed and a new boundary fence and retaining wall were constructed.
2007: Mr Edwards' sewer pipe was repaired.
2010: Mr Edwards had the boundary fence and retaining wall repaired. The Lamphees were made aware of damage possibly being caused by their tree.
2011: Mr Edwards informed the Lamphees that the 2007 damage to his sewer was caused by the Jacaranda.
2012: the application was made to the Land and Environment Court.

Does the Court have jurisdiction? 8Mr Edwards contends that the Jacaranda's roots caused damage to his sewer pipe, caused damage to the boundary wall, and are likely to cause further damage to the boundary wall.

Damage to the sewer pipe 9Mr Edwards engaged Chiswick Plumbing to repair the broken sewer in 2007. The invoice for those works, for $8,000, shows that a section of terracotta sewer pipe in Mr Edwards' rear garden was replaced with PVC pipe and another section of pipe was sleeved. At the bottom of the invoice is the following note, in different handwriting to that which precedes it: "Blockage was due to Jackaranda [sic] tree roots obstructing and collapsing old sewer line." The Lamphees have contacted Chiswick Plumbing and obtained a copy of the original invoice that is otherwise identical but does not have this note. There is no mention of tree roots anywhere on that invoice. Mr Lorenzo Poletto, Managing Director of Chiswick Plumbing, wrote a letter to Mr Edwards on 16 February 2012 stating that the 2007 damage was caused by tree roots and that the roots were from the Jacaranda. Mr Edwards stated at the hearing that Mr Poletto had not visited the site. 10Mr Kinsey suggests that the terracotta pipes were likely to be aged and deteriorated and that roots from the palms or other trees may have been responsible. 11Mr Edwards filed a report by Mr Hartley of the Arborist Network dated 28/11/2011. In that report Mr Hartley concludes that the "Jacaranda was also the most likely cause of the blockages in the pipes." Mr Hartley inspected the site four years after the damage was repaired. While it may be "most likely" I must be satisfied that there is a causal nexus, as discussed by Craig J at (38) in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, for the Court's jurisdiction to be enlivened. 12All of the above at least raises some doubt about the cause of damage to the sewer pipes and makes it difficult to be satisfied that the Jacaranda caused or was a cause of any damage. 13Regardless of the foregoing, even if I could be satisfied that roots of the Jacaranda were a cause of damage to the sewer pipes, I note that in Gan v Anderson & anor [2008] NSWLEC 1257, Moore C and Thyer AC dealt with compensation for damage to a sewer pipe. In that matter, compensation was sought for damage that occurred prior to the respondent being notified that their tree may have caused damage, as well as for further damage that occurred after such notification. At (31) the Commissioners stated: We are satisfied that the fact that the Gans decided, prior to November 2007, not to put Ms Field and Mr Anderson (or their earlier southern neighbours) on notice of root intrusion into the pipe or draw to their attention concerns about the pathway has disentitled them to any compensation prior to that date. 14This conclusion was drawn with regard to the comments of Preston CJ in Robson v Leischke [2008] NSWLEC 152 at (207): The considerations that arise in the tort of nuisance concerning fault, the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury. 15In light of this I find that the Lamphees were unaware in 2007 that roots of their tree may be causing damage. Even if I accept Mr Edwards' claim at its highest, although there is little evidence to support it, that Jacaranda roots did damage his sewer line in 2007, he chose not to inform the Lamphees until 2011. 16In summary, I am not satisfied, firstly, that damage to the sewer pipe meets the jurisdictional tests at s 10(2)(a) of the Act. Secondly, as compensation is the only order sought regarding the sewer pipes, and I find above that any compensation for this is not justified, this element of the application is dismissed.

Damage to the retaining wall and fence 17Along the common boundary between the properties is a wooden paling fence atop a 300-400mm block retaining wall. A section of the wall was repaired in 2010. The invoice for those works from 'Hire a Hubby' is for $1,562. I observed onsite that the base of the Jacaranda grows against the retaining wall. 18Mr Hartley concludes that the Jacaranda was the cause of cracking and lifting of the retaining wall and that it is likely to cause further damage. I accept that the Jacaranda has caused damage, although there is no evidence that demonstrates the extent of that damage prior to repair in 2010. Nevertheless, one of the tests at s 10(2)(a) is satisfied and the Court can make orders.

Other matters 19Mr Kinsey submits that relevant matters under s 12 include subsections (a), (b2), (c), (d) and (h). S 12 (h) requires the Court to consider: (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage. 20Mr Kinsey submits that Mr Edwards was aware of the tree when designing and building the wall in 2004 to 2005. Mr Edwards submitted that the boundary wall was built to approved plans. Annexure D of Mrs Lamphee's statement (exhibit 1) shows the approved plans for Mr Edwards' property, stamped by Canterbury City Council. Those plans show the new retaining wall to be located approximately 900 mm in from the boundary, not on the boundary. The boundary fence is shown only as a "lap and cap" hardwood fence. 21Mr Edwards was aware of the tree's presence in 2004. Eight years ago the base of the tree would already have been partially against the boundary. Other fences on Mr Edwards' property have been constructed around existing trees. It would have been reasonable to construct a wooden fence along the boundary near the Jacaranda and to locate the retaining wall a short distance in from the boundary, as shown on the approved plans. I do not see any reason why the Lamphees should be expected to pay for damage to the retaining wall and fence when such damage could have easily been avoided. On their evidence they were not provided with an opportunity to have input into the design of the fence prior to its construction in 2005. They were also not given the opportunity to assess any damage to the fence, or to review quotes for repairs, prior to those repairs being done in 2010. Considering the above I find that the Lamphees should not have to pay any compensation.

Does the tree need to be removed? 22Finally, turning to the need for tree removal, I note that the fence was repaired in 2010 and now, two years later, there is perhaps some very minor lifting of the retaining wall. It could not be regarded as damage at present. Mr Edwards submits that there was a small gap between the blocks of the wall and the bottom of the wooden palings after repair, and that the gap has now closed. He says this will continue and will lead to damage. However I cannot see that damage of any significance is likely to eventuate in the near future, which I regard as being the next 12 months as discussed in Yang v Scerri [2007] NSWLEC 592. Therefore the application to remove the tree is dismissed. 23The Lamphees are now fully aware of the proximity of their tree to the boundary and the concerns of their neighbour. Should circumstances change, as discussed in Hinde v Anderson and anor [2009] NSWLEC 1148, Mr Edwards can make a new application to the Court. 24As a consequence of the foregoing, the orders of the Court are: (1)The application is dismissed in its entirety.

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: 27 July 2012

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