COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Kellie Hampton of Mount Pritchard, involving damage relating to a tree or trees (the trees) located in the rear yard of the adjacent neighbouring property.
[2]
Background
Mrs Hampton reports sewer pipe blockage that has resulted in toilet blockage and repeated sewerage backflow on her property.
The respondents, Mr and Mrs Hanna, purchased their property in 2010 as an investment, and it has been rented out almost continuously since, under the management of Real Estate One in Liverpool (the agent).
Mrs Hampton contacted the agent in late 2010, and advised that roots from trees in the respondents' property were blocking pipes. In response, the respondents sought Council permission to remove all trees in the rear yard, and were granted permission to remove seven of the eleven trees, but did not proceed. In January 2012, after Mrs Hampton phoned Mrs Hanna and made further representations about ongoing sewerage problems, the respondents again requested Council permission to remove the seven trees located near the applicant's western boundary, and these trees were removed.
On September 14, 2017, following further sewerage backflow on her property, Mrs Hampton engaged Red Plumbing of Revesby, (who apparently subcontracted Pure Water Plumbing), to "see why our sewerage pipes are continually being blocked." Using a CCTV device, they detected roots blocking the pipe, and provided Mrs Hampton with the resulting video evidence. In response, Mrs Hampton had the obstruction in the pipe partially cleared by Sydney Water.
On September 21, 2017, Mrs Hampton contacted the agent by email, advising that roots from trees in the respondents' property were still blocking pipes, and again causing consequential sewerage backflow on her property. Based on the video footage, and Sydney Water representatives' comments, Mrs Hampton noted that pipe clearance was only a "band aid solution", and that "Sydney Water have told me that if this tree does not get removed, it is inevitable that the pipes will have to be replaced time and time again." She also raised the spectre of injury to health by adding "Who knows what damage this can cause in the future, and I certainly don't want to be knee deep in faeces."
In this email, Mrs Hampton described the steps required to initiate the process of having the tree removed, attached a copy of the video, and requested immediate attention to resolving the issue.
Mrs Hampton followed up with an additional email to the agent on September 25, 2017, and, upon receiving no response from the agent or the respondents to address the damage, she filed her application under the Act in September, 2018.
[3]
The hearing
Mrs Hampton was self-represented and was accompanied at the hearing by her husband, Mr Christopher Hampton. Mr and Mrs Hanna also attended the hearing, and were represented by Ms Theresa Sukkar of G&S Law Group.
Inspections commenced in the rear yard of the respondents' property, where the location of the seven trees that had grown close to the common boundary and were removed in 2012 was clarified, and where the locations of the remaining four trees was noted. These remaining trees comprised one healthy Araucaria columnaris (Cook Island Pine), approximately 15 metres tall, and three smaller trees. One of these was dead and two were in very poor health and condition.
Though these three smaller trees were all identified as Eucalyptus sp (Gum trees) in subsequent Council permission for removal dated October 25, 2018 and attached (as F) to Mr Hanna's affidavit, I was not convinced that they were all Gum trees, but this subsequently became irrelevant to the outcome of proceedings.
Based on the location of the blockage, approximately eleven metres inside the respondents' property as shown on the CCTV video, and an estimate of the sewer pipe's location, the plumber identified the closest of these 'Gum trees' as the most likely cause of the blockage, and marked its trunk base with blue paint.
The Court moved to the rear of the Hampton's property, and was shown an inspection port near the common boundary, where sewerage overflow had allegedly occurred on multiple occasions, and where the CCTV camera had been inserted. A grated drain on the eastern side of the applicant's rear yard was also identified as a source of sewerage overflow.
Being higher than the respondents' property to the west, a major sewer junction in bushland behind the respondents' property could be seen, and I concluded that the plumber's estimate of the sewer pipe's path was reasonable.
The Court then assembled at the rear of the Hampton's back yard for oral submissions.
[4]
The applicant's case
In her application, Mrs Hampton seeks the following orders;
1. Cut down tree and take roots out.
2. Replace broken pipes.
3. Pay compensation for damage, comprising the most recent plumbing bill for $600 for CCTV root identification, plus the cost of the application to the Land and Environment Court of NSW.
[5]
The respondent's case
These proposed orders are resisted by Mr and Mrs Hanna. At paragraph (para) 16 of his affidavit, Mr Hanna notes:
"Although I do not believe that any of the trees on my property have caused any damage to the applicant's pipes, I am prepared to remove and replace the trees that the applicant can establish are causing the alleged damage, if the applicant agrees to pay the costs associated with removing and replacing the trees. The applicant has not identified which trees she alleges are causing the blockage. All the trees that have remained on my property are too far away from the boundary so as to allow the root system to encroach upon the applicant's property."
[6]
Jurisdictional requirements
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. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
As required by s 10(1), I am satisfied that there has been an attempt by Mrs Hampton to reach agreement with the owner of the land on which the trees are situated. Mrs Hampton contends that the owners have resisted negotiation, and, in question 7 of her application, notes that Troy Williams, representing the agent, advised her that Mr Hanna "does not want me to contact him at any stage."
With reference to the emails 'allegedly' sent by Mrs Hampton to the agent on September 21 and 25, 2017, Mr Hanna submitted in para 13 of his affidavit that he did not "see these emails prior to receiving the application in these proceedings." Copies of these emails, sent to the same address as those that had previously been received by the agent, have been provided by Mrs Hampton in her application, and thus she bears no responsibility if these emails were not forwarded on by the agent to Mr and Mrs Hanna.
Additionally, at para 12 of his affidavit, Mr Hanna submits, "I was again contacted by the agent in about September 2017 who advised me that the applicant had raised further issues concerning the blockage of the sewer." By making this statement, Mr Hanna is acknowledging notification.
The next major test that is posed, by s 10(2)(a) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property, or is likely to cause injury to any person.
Based on a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 (Smith). At [62], Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act ..."
Ms Sukkar submitted that the jurisdiction of the Act did not apply in this case, for the following reasons:
[7]
(1) The trees were older than the respondents' ownership of the property, and the damage may have been there before they owned the property.
Based on the evidence provided, Mrs Hampton had notified the agent about toilet blockage and sewerage backflow damage on her property on at least four occasions over the approximately eight years that the respondents have owned the neighbouring property, and she claimed that this had resulted from sewer pipe blockage on the respondents' property. Even if some damage predated the respondents' ownership, and the property has changed hands over the period which the damage is said to have occurred, 'an applicant may make an application against the current owner/s but the former owner/s may be joined in the proceedings',
[8]
(2) Mrs Hampton did not provide a location diagram as required in the application.
Whilst this is true, the location of the four remaining trees in the respondents' property, and the sites of damage in the applicant's property were easily and unambiguously clarified at the site inspection, and this was acknowledged by both parties.
[9]
(3) There is no proof that the tree identified by the plumber is causing the damage.
This is also true, but Mrs Hampton provided a CCTV 'pipecam' video from the plumber as part of her evidence. With the arboricultural expertise I bring to the Court, and the high quality of the images, I could accurately identify the dense rounded woody mass obstructing about 70% of the cross-sectional area of the sewer pipe as roots of the Araucaria columnaris (Cook Island Pine). Though it is unusual to be able to identify tree species from external visual features alone, the characteristics of the bark, and particularly the specific resin exudation present, left me in no doubt as to the roots' source. This conclusion was reinforced by the absence of any species of tree in the vicinity, including in the bushland behind the properties, which would exhibit similar root characteristics. Therefore, albeit fortuitously, by providing the CCTV images as part of her evidence, Mrs Hampton has met the requirement in s 12(i) of identification of the right tree.
Though the CCTV evidence was dated 2011, Mrs Hampton submitted that she had only commissioned such investigation once, in September 2017, and, as this correlates with the details of Red Plumbing's invoice of September 14, 2017, the 2011 date on the video was attributed to a technical mistake by the plumber. Again, both parties accepted this conclusion.
[10]
(4) The location of damage to the pipe is on the respondents' property, rather than the applicant's.
This is a key issue, in support of which Ms Sukkar submitted McCormack v Spencer [2008] NSWLEC 1285 (McCormack) and Abdishou v Khoury [2010] NSWLEC 1268 (Abdishou), to both of which I have given careful consideration.
The facts in McCormack are sufficiently different to not represent a relevant precedent to this situation, but an element in Abdishou, being very similar to this situation, requires close examination.
In Abdishou at [4], Fakes C and Hewett AC state that:
"With respect to the drain, it was determined at the on-site hearing that this was located on adjoining properties and not on the applicant's property. Therefore it is beyond the jurisdiction of the Court to determine anything regarding the drain as s 7 of the Act applies to 'property on the land', that is, the applicant's land."
However, the claim by the applicant in this case is based on toilet blockage and sewerage backflow damage on her land, as a consequence of a tree or trees on neighbouring land, and thus is covered by the jurisdiction of the Act.
[11]
(5) Mr Hanna had not been notified about the damage, and therefore notice with respect to alleged damage was not appropriate or sufficient.
This issue has been addressed at paras 19 and 20, and is resolved in Mrs Hampton's favour.
[12]
(6) The applicant has provided no evidence which supports or proves that tree roots caused the crack/s in the sewer pipe.
To support this position Ms Sukkar submitted Muir v Owners Corporation SP 35683 [2011] NSWLEC 1276 (Muir), and highlighted [34(h)(i)], where Galwey AC initially notes:
"Although tree roots were found in, and removed from, the sewer pipe, no evidence has been provided that tree roots caused the crack at the pipe's junction with the boundary trap. The boundary trap is described as being at some depth."
In this matter, the question as to whether tree roots did or did not cause the crack/s in the sewer pipe is not crucial. The sewer pipe is likely to be terracotta, which are usually at least 30 or more years old. This was confirmed by Mrs Hampton, whose family have occupied their residence for four generations, and accepted by both parties. Some pre-existing jointing defects or other crack is likely to have existed before the tree roots could enter the pipe; and such pipes have a useable lifespan and will eventually need replacement. Modern sewer pipes are normally PVC with welded junctions.
This characteristic is also addressed in Muir where, again in [34(h)(i)], Galwey AC added:
"Tree roots typically grow in the upper layer of soil and only grow more deeply if conditions at a greater level favour their growth. Such might be the case if there was already a crack in the pipe, resulting in higher soil moisture levels in the vicinity of the crack, and so encouraging root growth there."
1. In this case, the crux is whether or not the toilet blockage and sewerage backflow on Mrs Hampton's land occurs as a consequence of a tree or trees on Mr and Mrs Hanna's neighbouring land, not the detail as to how this has happened.
Ms Sukkar also posited that by removing the boundary trees in 2012, Mr Hanna had taken measures to 'fix the problem' and thus should bear no further responsibility for damage. Mr Hanna appears narrowly focused on this issue, which has hampered resolution of the dispute.
Mr Hanna, at para 12 of his affidavit, wrote:
"I was again contacted by the agent in about September 2017 who advised me that the applicant had raised further issues concerning the blockage of the sewer. I had already paid to remove all the trees that were located along the boundary and therefore did not believe that the applicant had any reason to complain about the trees on my property. The only trees that remained were four trees at the rear of my property which are located near the creek and not in the vicinity of the boundary with the applicant's property."
On October 18, 2018, Mr Hanna received a survey which he commissioned to support this position. A copy of the survey is annexed to his affidavit as 'D', and on it the surveyor notes "The purpose of the survey was to locate the Closest Trees to Eastern Boundary."
Mr Hanna's focus on the location of the remaining trees appears, at least in part, to be based on the common misconception that roots of trees only grow in close proximity to the base of their trunks. To assist understanding of the reality, I advised the parties that the growth pattern of tree roots is primarily lateral, and they generally extend far beyond the spread of the canopy above. While their growth is usually radial away from the trunk, it is also opportunistic, and they grow more actively where conditions are best.
I received correspondence from Mrs Sukkar on the afternoon of the site hearing, forwarded via the Court, seeking leave to make a further submission. A summary of this follows;
At the initial on-site inspection, the applicant advised that her plumber had identified the forked tree at the rear of the property to be the cause of the damage to the pipe, and Mrs Hampton identified this tree as being the subject of her application for tree removal. Given that 'The Commissioner' identified a different tree to be the cause of the problem, Mrs Hampton thus did not adequately identify the tree which she wanted removed.
The respondents maintain that had they acted on the advice of the applicant's plumber and removed the forked tree located at the rear of the property, this would not have resolved the problem, as this is a different tree to that which the Commissioner believes the roots within the pipe belong. The respondents should, therefore, not be held liable to compensate the applicant for the damages that she is claiming.
This final submission is little more than a hypothetical distraction, as the CCTV footage provided by the applicant has resulted in accurate identification of the tree in the respondents' property which is blocking the sewer pipe, and consequently causing the toilet blockage and sewerage backflow damage on Mrs Hampton's property. This additional submission is therefore dismissed.
It is clear in his affidavit, and in the subsequent submissions at the hearing, that Mr Hanna has displayed considerable resistance to accept even the possibility of responsibility, financial or otherwise, for the Hampton's ongoing sewer problems. In doing so, he appears unaware or unconcerned about associated health risks.
Based on the sum of the evidence, I accept that the roots of the Araucaria columnaris (Cook Island Pine) located on the respondents' land are a cause of blockage to the sewer pipe. On the balance of probability, I am persuaded that this blockage is consequently causing the toilet and sewerage backflow on Mrs Hampton's property. Based on [62] in Smith, this constitutes damage, and, particularly, risk of injury.
The jurisdiction of the Act is enlivened, and the Court's jurisdiction under s 9 to make any orders it thinks fit is therefore engaged, subject to consideration of a number of discretionary matters in s 12.
Given that surface release of effluent has the propensity to cause illness, the decision published in Yang v Scerri [2007] NSWLEC 592, with respect to injury, guides one to consider the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
Though, as Galwey AC notes in concluding [34(h)(i)] in Muir, "it is common for tree roots to be growing in the vicinity of properly installed PVC pipes without causing damage", in this situation, I order the removal of the Araucaria columnaris, along with removal of the woody root incursion from the sewer pipe, and repair/replacement of the sewer pipe, so as to render the pipe fully functional.
While it is preferable to retain viable trees, this specimen has considerable growth potential, both above and below ground. If retained, much more extensive sewer pipe replacement would currently be required, and, even then, further root related pipe damage would not be unlikely in the medium to long term. Prior to undertaking plumbing works, contact should be made with Sydney Water to clarify their requirements and procedures.
If the respondents do not complete these works within 45 days of the date of these orders, the applicant and their employed contractors may enter the respondents' property to undertake this work, and, upon completion, provide the respondents, or their agent, the invoice for these works. The respondents shall be liable to compensate the applicant the total of these invoices within 21 days of receipt. Should there be non-compliance with these orders, guidance is available on the Court website as to further recourse.
The applicant also seeks orders for compensation for the cost of the application for these proceedings, plus for the $600 plumbing bill for CCTV root identification. Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court or other expenses. The $600 for CCTV root identification falls into the category of expert reports. Claims for these costs must be made by a Notice of Motion which is heard and determined by a Judge or Registrar.
[13]
Discretionary matters - s 12
In making orders, the Court considered relevant matters in s 12 of the Act.
(a) The tree/s are located entirely in the respondents' property.
(b) The Araucaria columnaris (Cook Island Pine) is subject to Council's Tree Management controls and permission has been granted for its removal.
(b3) The Cook Island Pine contributes to protection from the sun, to landscaping, to the amenity of the respondents' property.
(f) The Cook Island Pine is visible from neighbouring houses and thus has intrinsic value to public amenity.
(g) Given that the land is sloping, the trees are likely to be providing benefit to soil stability.
None of these provide any basis why, on balance, I should not order the removal of the tree.
[14]
Orders
The orders of the Court are:
1. The respondents are to remove the Araucaria columnaris to near ground level and poison its stump. This tree removal shall be undertaken by an AQF level 3 qualified arborist with appropriate Public Liability insurance. The tree removal shall meet SafeWork NSW Work, Health and Safety (WHS) guidelines, and the Workcover NSW Code of Practice for the Amenity Tree Industry. This work shall be completed within 45 days of the date of these orders.
2. The respondents are to remove the woody root incursion from the sewer pipe, and repair/and or replace the sewer pipe, so as to render the pipe fully functional. This work shall satisfy Sydney Water requirements. This work shall be undertaken by a licenced plumber, with appropriate Public Liability insurance, and meet SafeWork NSW WHS guidelines. This work shall be completed within 45 days of the date of these orders.
3. Should the respondents not complete these works within 45 days of the date of these orders, Mrs Hampton may contract licensed plumbers, and AQF level 3 qualified arborists, who may enter the respondents' property, so as to complete the works as specified in Orders (1) and (2). Access for such works is subject to 48 hours written notice being provided to the respondents, or to their agent, and is to be gained during reasonable working hours. Upon completion, receipted invoices for these works are to be provided to the respondents, or to their agent, and the respondents are to reimburse the applicant for the total cost shown on these receipted invoices within 21 days of receiving the invoices. These works must be completed within 60 days of the termination of the 45 day period specified in Orders (1) and (2), and if they are not completed within that period, this order lapses.
[15]
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Decision last updated: 28 February 2019