Gan v Anderson & anor

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 Robson v Leischke [2008] NSWLEC 152

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

08/20295 Eddie & Patti Gan v Ian Anderson & Nicole Field

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONERS: Mr and Ms Gan live at 9 Coronation Street, Eastwood and Mr Anderson and Ms Field own 9 Coronation Street, the property immediately to the south. The domestic sewer line connecting the Gans' property to the Sydney Water sewer runs under a concrete pathway along the southern boundary of their property adjoining Mr Anderson and Ms Field's property.

2 Approximately 8 m into the Gan's property from the front fence, their sewer line passes in the vicinity of a Cypress tree located on Mr Anderson and Ms Field's property. The cypress tree is located adjacent to the fence and less than 1 m, in a horizontal line, from the Gans' sewer line.

3 Over the past 10 years or so, on approximately six occasions, Mr and Mrs Gan have had to clear their blocked sewer line using an electric eel. Two of those clearing activities are the subject of a compensation claim in the proceedings (being a clearing of the sewer in October 2007 and another clearing in February 2008).

4 Prior to the October 2007 clearing, the most recent of the other incidences of clearing took place, on Mr Gans' evidence (which we accept), some two years prior this - being about the end of 2005.

5 The electric eel work which was undertaken in October 2007 was at a cost of $360 and Mr Gan has given evidence that that was accompanied by a CCTV inspection of the pipe. Because that CCTV inspection was undertaken as a promotional activity by the plumber (who expected to receive further the work replacing the sewer line), no taped record of that inspection was made available to Mr Gan.

6 The February 2008 pipe clearing was also accompanied by a CCTV inspection - a tape of which was made available to Mr Gan. Shortly after it was made available to him, he gave it to Ms Field. The tape has remained in her possession since. It was Ms Field's evidence that the Gans had not requested that the tape be returned. Neither side has tendered the tape in these proceedings and, under the circumstances, we draw no inferences from its absence.

7 The eel clearing undertaken in February 2008 was at a cost of $478.50 and this comprises the second element of the specific compensation claim made by Mr and Mrs Gan.

8 The Gans' application seeks three orders from the Court: o First, removal of the Cypress tree; o Second, compensation of $838.50 (being the costs of the October 2007 and February 2008 plumbing work undertaken to the sewer line); and o Third, an unspecified contribution to removal of the sewer pipe and its replacement and the replacement of the pathway which is above the sewer line in the vicinity of the Cypress tree and along the boundary of the property.

9 The plumber who undertook the work in February 2008, CMF Plumbing, has provided the Gans with estimates for three alternative elements of work to the sewer line which could possibly be undertaken (depending on the length of sewer pipe to be replaced). The quotes range from approximately $2,700 to $10,000. Mr Gan has provided a single quotation for replacement of 9 m of the path at a cost of $2,200.

10 The pathway is also cracked significantly and lifted in the vicinity of the Cypress tree.

11 The first time that damage to the sewer pipe by the intrusion of roots was drawn to the attention of Mr Anderson or Ms Field was a conversation with Ms Field over the back fence sometime in November 2007. The first time damage to the pathway was drawn to the attention of Mr Anderson or Ms Field was during a Community Justice Centre mediation process in mid-March 2008.

12 We have carefully inspected the path and we have noted the cracking and lifting in the vicinity of the tree. During the course of the inspection, we asked Mr Gan if he would estimate the extent of lifting in the path (which at the present time appears to be a displacement of approximately 3 inches) since this was drawn to the attention of Mr Anderson and Ms Field in March. Mr Gan estimated that there had been a significant lift in the path over that period of time and that that was at least 1 inch (as he showed it to us). 13 In response to these matters, Ms Field and Mr Anderson submitted we should have regard to a number of matters.

14 First, at a point close to the leading-edge of their house (which is some 2.5 m or so behind the front setback of the Gans' house), in 2002, they had removed a large Christmas bush which had been growing on the boundary; they had removed the existing driveway of their house as part of their renovations at that time and replaced the former driveway with the present driveway of pavers on compacted road base. They suggested that that Christmas bush might have contributed tree roots to the pipe.

15 Second, a significant multi-trunked Magnolia located on the front of the Gans' property (approximately a third of the way along the frontage from the field and Anderson property) might also have contributed roots in the sewer pipe.

16 Third, the path displayed cracking which was similar to displacement and cracking observed in the path on the southern side of their own property and that there were no trees in the vicinity of that path. As a consequence, they put that we should conclude that the damage to the Gans' path was occasioned by the natural rise and settlement of the reactive clay soil upon which both the dwellings were constructed. 17 Finally, as they had re-laid their driveway on road base with appropriate drainage and installed a driveway of pavers in 2002 and there was no damage evidence to their driveway since that installation, we should conclude that there was no significant contribution made to the lifting of the pathway or of damage to the sewer over the intervening period of time.

18 In addition, Mr Rodgers, a plumber, gave evidence on behalf of Ms Field and Mr Anderson. Mr Rodgers had been commissioned to undertake an analysis of the CCTV footage provided by CMF Plumbing to Mr Gan. As a result of Mr Rodgers' analysis, he drew attention to a number of what he considered were defects in the material shown on the CCTV footage. The first arose from the fact that the data logging on the camera appeared not to be properly calibrated or was technology which did not give completely accurate measurements of distance travelled along the pipe. The reason he drew this conclusion was the fact that, from time to time, depending on the orientation of the camera in the pipe, the data logging (as to distance travelled) cut out and then resumed when the orientation of the camera changed again.

19 Second, he drew attention to the fact that the date the camera recorded as undertaking this activity was some 10 years or so ago - clearly not the time when the activity was, in fact, undertaken.

20 Mr Rodgers gave evidence of the nature of the terracotta pipes and contradicted a number of aspects of the evidence in the short and less specific statement provided by CMF Plumbing as part of the invoice to Mr and Mrs Gan. Mr Rodgers specifically asked us to consider whether the data logging of the distances in the pipe of the three elements of tree root intrusion were capable of being accepted to the degree of accuracy given in the CMF Plumbing report.

21 Having considered all of those matters, we have made a number of findings of fact that give us a basis upon which to determine what orders we should make.

22 The first finding is that, although there may be deficiencies with the CCTV footage, we are satisfied that it provides a sufficiently accurate indication of three root intrusion zones for us not to need to determine precisely the dimensional accuracy in the CMF report. We accept that there were three zones of root penetration and that they are sufficiently generally capable of being described, for the purposes of our determination, as being at the locations pointed to by Mr Gan.

23 Our second finding is that, as the pipe clearing undertaken in about late 2005 by electric eel (after the removal of the Christmas bush in 2002) would have removed any of that bush's roots in the pipe, it is reasonable to conclude that at the Cypress tree's roots are the roots in the pipe at points B and C identified in the diagram provided by the Gans' consulting engineer - these being the two locations at greater distance within the Gans' property and near that tree.

24 At point A on the engineer's diagram, being the closest to the street frontage, it is possible the Cypress might have been a cause of the roots entering the pipe at that point but it is not possible to discount (absent DNA testing of root shards removed from the pipe) the real possibility that the Magnolia in the front part of the Gans' property might also have been a cause.

25 We are satisfied, therefore, with the degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336, that the tree root penetration at points B and C come from the Cypress but we are unable to reach such a conclusion with the root penetration at point A. We therefore do not take root penetration at point A into account in considering what orders we should make but we are satisfied that the Cypress tree has caused a penetration to the extent necessary to require action to prevent continuing damage, in the near future, to the Gans' sewer pipe

26 Third, we have noted that the applicants had known of the root penetration for over 10 years and had not complained or undertaken any activity to replace or repair the sewer, merely undertaking electric eel clearance over the whole of that period. They had certainly not drawn the intrusion of the roots into the pipe to the attention of Ms Field and Mr Anderson or to the prior owners of their property.

27 Fourth, we have concluded that the roots of the Cypress tree are likely to be the cause of lifting of the path in the vicinity of the tree (because of the tree's proximity to the path) but we do not accept the quantification made by Mr Gan of the extent of the lifting since March 2008. To the contrary, there is no physical evidence that the path has moved during that period of time to anything other than a minimal extent. We are certainly of the view that, had there been the sort of radical lifting of the path that Mr Gan contends for over that short period of time, we would almost inevitably have seen some similar (if less radical) lifting to the paving on Ms Field and Mr Anderson's driveway.

28 We also accept Mr Rodgers' uncontested evidence of the age of the pipes and evidence of the extent of wear and displacement of pipe joints rather than cracking of the pipes. We do not accept the broad description in the CMF Plumbing report as to the existence of major cracking or major roots as we accept Mr Rodgers evidence giving size of the roots shown on the CCTV footage is a maximum of some 3 mm. We are not prepared to accept that this is major root intrusion into the pipe

29 In light of all of the foregoing findings, we have reached the following conclusions as to what orders we should make.

30 With respect to the question of compensation for past root damage and root intrusion into the pipe - that is the 2007 clearing activity and any earlier activity (including damage to the path and pipe), we have had regard to the comments of Preston CJ in Robson v Leischke [2008] NSWLEC 152 at para 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. 31 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.

32 The Gans having drawn the attention of Ms Field to this matter in November 2007, she did not take any action (for reasons which she has explained to us concerning the health problems of Mr Anderson and a planned holiday). However, we are nonetheless satisfied that their lack of any response renders it appropriate to order recompense for the cost of the pipe clearing and inspection activity undertaken in February 2008.

33 We therefore turn to consider what would be appropriate to order to prevent damage in the future.

34 First, we note that, if the relevant portion of the terracotta sewer is removed and re-laid with a PVC sewer pipe from the inspection point at the front of the property for a distance of some 12 m or so into the Gans' property, there will be no need to remove the tree. If this portion of the sewer is re-laid, it will also be necessary that the element of the path above the sewer be re-laid as a consequence.

35 In our assessment (and consistent of the evidence given by Mr Rodgers), the intermediate one of three quotations provided by CMF Plumbing, at a cost of approximately $4400, represents the appropriate necessary extent of pipe replacement; the cost of re-laying the relevant portion of the pathway is $2200 (on the quote provided by Mr Gan) - giving a total of $6,600 for the work we consider appropriate.

36 We have also considered what discount to this amount should be applied for the following factors: o first, the failure of the Gans to undertake any remedial action over the period of 10 years during which they have been on notice that there has been intrusion of tree roots to their sewer pipe and displacement of their pathway; o second, the nature of the material of the pipes which are of a glazed terracotta nature some 70 years or so old and the fact that there would be ordinary deterioration of the pipe joints over that period of time (consistent with the evidence given by Mr Rodgers); and o finally, the fact that at least part of the root intrusion into the pipe cannot be ruled out as coming from the Magnolia. 37 As a consequence (and particularly as a consequence of the ten year delay by the Gans in drawing this matter to their neighbours' attention), we conclude that the discount should be a significant one. We conclude that the exposure of Ms Field and Mr Anderson of the total cost of $6,600 for the work we consider appropriate should be limited to 20% of that amount (being an amount of $1320).

38 As earlier indicated, we consider that Ms Field and Mr Anderson should also reimburse the Gans for the cost of the 2008 pipe clearance and CCTV inspection.

39 As a consequence of the foregoing, the formal orders of the Court will be as follows: 1. Ms Field and Mr Anderson are to pay Mr and Mrs Gan the sum of $1320 within 28 days of service upon Ms Field and Mr Anderson of a receipted invoice for the completed work of re-laying the Gans' sewer pipe into Mr and Mrs Gans' property to a point at least 12 m from the front inspection point for the sewer pipe; 2. Ms Field and Mr Anderson are to pay Mr and Mrs Gan the sum of $478.50 within 28 days of the date of the orders of the Court; 3. Ms Field and Mr Anderson are to advise the Gans, within 28 days of the date of the orders, the address at which they can be served with the receipted invoice provided for in (1); 4. If the address provided for in (3) changes, Ms Field and Mr Anderson are to advise Mr and Mrs Gan in writing of any new address for service within 28 days of the date of such change of address; 5. Order (1) for compensation for re-laying of the sewer pipe will lapse if the work is not completed and invoice not served on Ms Field and Mr Anderson within one year from the date of these orders; 6. All excavation within 3 m of the Cypress tree, for the purpose of re-laying the Gans' sewer pipe, is to be undertaken by hand and no root of the Cypress tree greater in diameter than 50 mm is to be cut during the course of this work. Tim Moore Peter Thyer Commissioner of the Court 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.