Kontrafouris v Ginter

Damage to the Applicants' property

1. Before making orders, the Court must be satisfied at s 10(2) of the Trees Act that the trees have caused, are causing, or are likely in the near future to cause, damage to the Applicants' property, or are likely to cause injury to a person. If the test at s 10 is satisfied, the Court must consider the relevant matters at s 12 before making any orders enabled by s 9 of the Trees Act. Jasmine, like other vines, is a tree for the purposes of the Trees Act: s 3 of the Trees Act and cl 4 of the Trees (Disputes Between Neighbours) Regulation 2019.

The Applicants' position

1. The Applicants submitted that roots from the Respondents' jasmine plants have grown into their sewer pipe, blocking the pipe and requiring repairs that have so far cost $5,600. They submitted that further damage would occur unless the jasmine is removed or other preventative measures are put in place. Those measures include poisoning roots, relining the pipe, repeated clearing of the pipe, and installation of a root barrier. They received a quote of $30,000 for relining the pipe. They said that installing a root barrier would be less disruptive, requiring the removal of only one row of pavers, and might only cost $2,000. They are willing for a root barrier to be installed on their side of the boundary fence if it is at the Respondents' expense. They suggested that the cost of a root barrier could be deducted from the pipe repair compensation sum.
2. The Applicants acknowledged that their terracotta sewer pipe is old, but argued that the pipe would have remained functional, and would not have required repairs, if not for the Respondents' jasmine. Although mortar joints might have deteriorated, they said the pipe had not shifted at all. The Applicants further submitted that jasmine roots growing into their vegetable garden restrict their ability to cultivate the soils and compete with the growth of their vegetables.
3. The Applicants relied on reports from their plumber and photographs of a root mass removed from their sewer pipe. The plumber highlighted areas where roots had entered the pipe and warned that roots are likely to block the pipe again in future.

The Respondents' position

1. According to the Respondents, Randwick City Council records show the Applicants' dwelling was built in or around 1953, so the Applicants' terracotta sewer pipe is almost 70 years old, at the end of its useful life.
2. The Respondents first heard of the Applicants' blocked sewer pipe on the day the pipe was repaired. When they could not agree on compensation and preventative measures, the Respondents sought mediation with the Applicants via the Community Justice Centres, but the Applicants did not accept. The Respondents were not provided an opportunity to obtain their own quote for repair, but were presented with the Applicants' invoice.
3. The Respondents submitted that roots might be from other trees in the area, however Catriona Mackenzie, the consulting arborist they engaged, thought it most likely that roots were from the jasmine vines, given their proximity to the pipe.
4. Ms Mackenzie explained that old terracotta pipes usually have small defects, such as deterioration of mortar joints, that allow ingress of fine roots into the pipes. Once inside a pipe, roots proliferate and cause blockages, and as they increase in size (girth) they might exacerbate the existing defects.
5. The Respondents pointed out that another section of the Applicants' pipe had been repaired earlier, near a camellia growing on the Applicants' land. That section of pipe remains undamaged. They submitted that the Applicants are responsible for maintaining their property, including their sewer pipe. Relining the pipe, or replacing it with a PVC pipe, would be an improvement to the Applicants' property, so should be at the Applicants' expense.
6. The Respondents argued that growing small vines on a fence is a reasonable use of their property, however they would rather remove them than be forced to spend thousands of dollars upgrading their neighbours' sewer pipe.

Findings

1. The jasmine vines are in close proximity to the blocked sections of the sewer pipe; other vegetation is significantly distant. I am satisfied that jasmine roots have contributed to damage to the Applicants' sewer pipe, even if the pipe was already defective. The Court's jurisdiction at s 10(2)(a) is enlivened.
2. Damage to terracotta sewer pipes has been considered by this Court in many tree disputes. In Colling v Wilson [2009] NSWLEC 1061, the Court considered the age and condition of terracotta pipes at [25], but found at [26] that their condition was compounded by the roots of neighbouring trees. In Difford v Davidson [2018] NSWLEC 1612, at [10]-[16], the Court considered a situation similar to the one before me. The Court found that the sewer pipe was near the end of its life, and its upgrade was a matter for its owner.
3. I find that the Respondents were not unreasonable in planting jasmine along their side of the boundary fence. The vines are reasonably small plants; they have not planted a massive tree against a boundary fence. They did not knowingly cause or continue a nuisance. They had no knowledge of the damaged pipe prior to its repair, and no opportunity to prevent it. I find there is no reason for the Respondents to contribute to the repair costs already incurred by the Applicants.
4. It remains likely that jasmine roots will grow into the unrepaired parts of the Applicants' terracotta sewer pipe. Based on my own experience, I do not think installing a root barrier would provide a permanent solution. I accept the Kontrafourises' submission that such damage brings forward the need to replace their aged pipe by perhaps 10 years, so it might be reasonable for the Respondents to contribute to the cost of this. However, I also accept the Respondents' submission that a new PVC pipe is a significant upgrade to the Applicants' property. The Applicants also have the option of relining their pipe. With no realistic quotes provided for those works, I have estimated a maximum contribution to be made by the Respondents. Orders will be made for the Respondents to contribute the lesser amount of $1,000 or 10% of the cost of relining or replacing the Applicants' sewer pipe, but only if the Applicants carry out the works within 6 months of the date of these orders.
5. In The Owners - Strata Plan 38217 v Bates [2022] NSWLEC 1100 at [21], the Court found no reason to make orders regarding roots growing into a neighbouring garden bed. The situation concerning the Kontrafourises' garden bed is similar, and likewise here, I see no reason to make orders on that element of their application. The removal of jasmine roots from their vegetable garden is something they may undertake as they see fit.

Orders

1. As a result of the foregoing, the Court orders: 1. The application is granted to the extent of the following orders. 2. If within 6 months of the date of these orders the Applicants undertake the work either of relining or replacing their terracotta sewer pipe along the side boundary they share with the Respondents, the Respondents are to pay to the Applicants the lesser amount of $1,000 or 10% of the cost of the works, within 28 days of being provided with a receipted account showing that the work has been undertaken. 3. If such receipted account is not presented to the Respondents within 6 months of the date of these orders, order (2) lapses.

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: 12 October 2022