Little v Tomicic

Land and Environment Court (NSW)|2018-07-17

Background

Maureen Little ('the applicant') owns a property on the slopes of Woronora. Several years ago a sewer pipe on her property became blocked. A plumber attended and cleared the pipe. In 2017, her sewer pipe again was blocked. The plumber who cleared it found tree roots in the pipe. Mrs Little determined that the roots were from trees on the neighbouring property belonging to Zoran Tomicic ('the respondent'). She asked Mr Tomicic to remove trees, which he has done, and to pay for pipe repairs and installing a root barrier. Mr Tomicic disputes these works are his responsibility.
In the past, a large tree fell from Mr Tomicic's property onto Mrs Little's property, causing more than $20,000 of damage, recovered through property insurance. Although that tree and the damage it caused are not part of this application, Mrs Little is concerned that large limbs might fall from another of the respondent's trees, causing further damage to her property.
The trees that Mrs Little says have caused damage to pipes are a Cheese Tree (T1) and a Lilly Pilly (T2). The tree she says might damage her property with falling limbs is an Angophora (T3).
Mrs Little applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for: 1. Repair of the pipe, with respondent paying the cost of repair to the section damaged by tree roots. 2. Installation of a root barrier, at the respondent's expense, along the boundary next to her front garden to prevent root growth into her property. 3. Pruning of T3 and ongoing inspections and pruning of T1, T2 and T3, as well as other trees OD6 and OD7, Eucalypts in Mr Tomicic's rear garden.
After the application was filed and before the onsite hearing, Mr Tomicic had T2 removed and T3 pruned. Mrs Little also discovered her sewer pipes are several years older than she originally thought. She sought leave to amend the orders to: include apportionment of costs for pipe repairs, considering their age; exclude immediate pruning of T3; and amend orders for ongoing inspection and pruning works to apply to T1, T3 and OD6.

Framework of the Trees Act

If I am satisfied, for each tree, that it has caused, is causing, or is likely in the near future to cause, damage to the applicants' property (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

Camellias

Mrs Little was concerned that at varying times Mr Tomicic had apparently told her that a row of camellias along the boundary was on her land, on the boundary, and on his land. The location of the camellias is not relevant to this decision.

Arborist evidence

Each party engaged an arborist to provide a written report and give evidence at the hearing: Scott Gatenby, of Apex Tree and Garden Experts, for the applicant; and Mark Hartley, of the Arborist Network, for the respondent.
The arborists agreed on most matters. The Cheese Tree (Glochidion ferdinandi) (T1) grows between the respondent's driveway and the common boundary. It is a mature healthy tree providing amenity and contributing to the local landscape. It is structurally sound. Its roots may have grown into the applicant's sewer pipes, but this was most likely a result of the pipes already being cracked at their joins due to their age.
Mr Gatenby and Mr Hartley both expressed the view that terracotta pipes deteriorate over time, with a useful life of approximately 30 years. Seals at the joints of each section will certainly deteriorate within that timeframe, allowing moisture to escape into the surrounding soil. Roots proliferate most where moisture is available - adjacent to the pipes, then in the cracks, and ultimately inside the pipes.
Mr Hartley stated that lined terracotta pipes provide a good solution, offering the strength of terracotta combined with the flexibility of the lining material.
Both arborists said a root barrier would not be required if the pipe is properly repaired. Even if a root barrier was needed, it would be difficult to install one successfully on the undulating bedrock such that further root growth into the applicant's property would be prevented.
When asked if a root barrier could have been installed at the time of the respondent's driveway construction, Mr Hartley answered that it would have been possible, and might have minimised root growth into Mrs Little's property, but would have required large roots of the mature Cheese Tree to be cut.
Mr Gatenby and Mr Hartley agreed that T3 now poses no significant risk of causing damage to Mrs Little's property in the near future, and other trees on the Tomicic property also pose no significant risk of causing damage to her property. The pruning carried out on T3 was thorough in its extent but not in its method - it has been lopped without regard for natural target pruning or the guidelines of AS4373 Pruning of amenity trees. This should only concern its owner, not Mrs Little, as any epicormic growth on lopped stubs will be above his dwelling or outdoor area.

The applicant's submissions

Mrs Little says she now understands her terracotta pipes are older than she first thought - her house was constructed in 1984, not during the 1990s. She expects some apportionment of pipe repair costs accordingly.
Mrs Little appreciates the amenity provided by the Cheese Tree and does not want it removed. She says suckers grow from its roots on her property, perhaps exacerbated by the works on the respondent's property.
Mrs Little obtained results of DNA testing showing that roots of T1 were in her sewer pipe. She says she has tried to resolve the matter with Mr Tomicic since obtaining this evidence.
Mrs Little says that Sydney Water has published material advising that Lilly Pillies should not be within 6 metres of pipes, and is relieved that T2 has been removed.
She says Mr Tomicic knew all along that her pipes were terracotta and he should have taken action to prevent damage from his trees.
After Mrs Little suffered significant property damage from another tree, she was anxious that the large dead limbs of T3 would fall onto her property.
Mrs Little argues that the respondent is reluctant to take any action, will not agree to resolve issues, so she has been forced to apply to the Court.

The respondent's submissions

Mr Woolf argues that the terracotta pipes are at the end of their useful life and Mr Tomicic can't be held responsible for their condition. If roots of Mr Tomicic's trees grew into the pipe, this was a result of the pipe's poor condition. Pipe repair would be required at this stage regardless of the trees. Roots are only a marker of the need for pipe maintenance.
Mr Tomicic says it was only after the application was made that he received the DNA evidence showing the presence of Cheese Tree roots in the sewer pipe. He was not willing to act without evidence. Mr Tomicic says he did not know that Mrs Little's sewer pipes were terracotta; he thought they were PVC.
Mr Tomicic says that in 2011 he was given no evidence that tree roots were in the pipes and he was not asked for compensation.
In response to a letter in August 2017 requesting compensation for pipe repairs, among other things, Mr Tomicic pointed out that he had not seen evidence that his trees' roots had caused any damage. He offered to pay for the plumbing inspection report that Mrs Little had obtained, if he received a copy of the report including video footage. He pointed out the problems with ageing terracotta pipes.
Mr Tomicic has always been willing to deal with the issues when necessary and reasonable. He removed T2 promptly. He had T3 pruned to remove large dead limbs.
Mr Tomicic says an earlier inspection of the sewer pipe, dating from 2007, shows no damage to the pipe.
Mr Woolf concedes T1 is near the boundary, but this is not the cause of damage.
Mr Woolf argues that the applicant has not taken any action to prevent damage since 2011, despite being made aware then of the condition of her sewer pipes. Had she had the pipes repaired properly, T1's roots would not have entered the pipe.
Mr Woolf referred the Court to the Chief Judge's statement at [225] of Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280: 225 The only person whom it is suggested should pay compensation is Mr Leischke, being the owner of the land on which the tree that caused damage is situated. However, the mere fact that a tree is situated on a person's land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property.
Mr Woolf says Mr Tomicic is not at fault and should not be an insurer of his neighbour's property.
Mr Woolf argues that Mr Tomicic should not be required to pay compensation, but if the Court finds otherwise, he says the limited ability Mr Tomicic has had to prevent damage should limit any apportionment to 10-20% of the cost of repairs.

The respondent's driveway

Mr Tomicic's driveway was extended some years ago toward the boundary, but this was done as a slab suspended on bored piers, leaving much of the ground beneath undisturbed.
Mrs Little says the driveway's presence has limited the extent of root growth on the Tomicic property, forcing his trees' roots to proliferate on her property. There was no evidence of this. I accept roots of T1 and T2 grew into her land and could cause damage. I do not accept that Mr Tomicic's actions increased the likelihood of this occurring, or that it would be reasonable to expect consideration of this when the driveway was constructed. As the arborists pointed out, the driveway was constructed in such a way as to protect the root zone below.
Mrs Little argues that works for installing the piers that support the driveway created significant vibrations and may have affected the integrity of her sewer pipes, allowing later ingress of tree roots. She pointed out a reference to an earlier Geotechnical report from a Mr Mark Bartel that "specifically noted that vibration from the rock hammer would be noticeable to occupants in adjoining property…". However there is no evidence that any such damage resulted from that activity so that is not something I can consider here.

Sewer pipe

Most of the sewer pipe below ground is terracotta - a small section above ground is PVC. There is no evidence showing which tree's roots were the cause of damage when Mrs Little's sewer pipe first became blocked in 2011. The plumber engaged by Mrs Little in 2017 noted that root ingress was largely isolated to joins, where pipe sections were misaligned and gaps or cracks existed at the joins. Both arborists agreed that this would be the most likely scenario. DNA analysis showed roots found in the pipe at this later stage were from a Cheese Tree.
If the pipes are relined, the plumber has said they would be guaranteed for 30 years.
Mrs Little's terracotta sewer pipe is more than thirty years old. Its condition can reasonably be expected to have deteriorated, with seals at joints cracking, allowing roots to enter.

Trees

Regarding trees in Mr Tomicic's rear garden, T3 and OD6, I concur with both arborists: these trees are unlikely to cause damage to Mrs Little's property in the near future. They do not enliven the Court's jurisdiction, so no orders can be made for them. Mrs Little said she was also concerned about termites, but any damage that might be caused by termites is not damaged caused by a tree (see Robson at [189]).
Tree 1 may satisfy the jurisdictional test for other reasons, but it does not require orders for ongoing inspection and pruning.

Conclusion

I am satisfied that roots of T1 blocked Mrs Little's sewer pipe, contributing to damage and the need for a plumber's attention, and orders can be made to remedy and prevent damage. No claim was made for compensation. Mrs Little does not seek orders for the tree's removal - in fact, she expressed her appreciation of the tree's benefits. Mrs Little seeks orders for repairs to her pipe and installation of a root barrier.
Lining the pipe is a suitable option to prevent further damage. I accept to some extent the respondent's argument that the tree has highlighted the need for pipe maintenance, rather than causing it. In several recent cases, the Court has dismissed applications for compensation relating to terracotta sewer pipes on the basis that the pipes needed repair anyway and the respondents had no opportunity to prevent damage: Fifield v Sang and Wang [2018] NSWLEC 1377; Knight v Simmons [2018] NSWLEC 1231.
Mrs Little had an opportunity to repair the pipes properly in 2011 when they first became blocked. She may have informed Mr Tomicic of the issue at that time, but she did not ask for compensation. Installing a root barrier would have been a disproportionate response for Mr Tomicic at that point, and one with questionable success. Short of removing the Cheese Tree, an outcome Mrs Little maintains she does not want, there is little Mr Tomicic could have done to prevent further damage. For these reasons, he shall not be required to contribute to pipe repair costs.
The responsibility of repairing the pipes shall remain with Mrs Little. If the pipes are repaired properly, I accept the arboricultural evidence that a root barrier is not required. Both arborists explained the difficulty of getting an effective long-term barrier in this soil on rock.

Orders

As a result of the foregoing, the application is dismissed.

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: 10 August 2018

(2008) 159 LGERA 280

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