Missenden v Thomson & anor

The stormwater pipe 7The damaged pipe is a 300mm diameter concrete stormwater pipe that collects water from a driveway shared by several properties. The pipe is thought to have been installed when the area was sub-divided about 60 years ago. Mr Kevin Dagg, the applicant's builder, was present at the hearing. He agreed that the pipe was likely to be original and he confirmed that the standard jointing practice was to concrete the ' eight foot' sections of pipe together. 8The pipe is well within a metre of the common boundary. It sits on a mixture of sandy clay and sandstone floaters typical of the area. It is above the level of the nearby lower-ground floor room of the applicant's dwelling. The pipe was originally covered by a path and soil and retained by a single thickness brick wall. 9Mr Dagg discovered the damaged pipe when the path and overlying soil were partly excavated to investigate water damage to the adjoining western wall of the dwelling. Removal of the wall, retaining wall and more soil revealed the presence of many roots from the Blackbutt beside and beneath the stormwater pipe. Two sections of pipe have been displaced and the joints opened. 10The applicant's evidence includes a number of reports by structural engineers and an arborist (Exhibits B, C and D). While most of these reports also refer to the western wall of the dwelling, the stormwater pipe is discussed. An inspection of the exposed pipe and roots confirmed the veracity of photographs and descriptions of the damage in those reports. The exposed roots ranged in size from small fibrous roots to large woody roots in excess of 250mm in diameter. In the arborist's opinion, these are structural roots. With the expertise I bring to the Court, I agree with that opinion. 11The arborist recommends removal of the tree given the extent of root pruning required and the likely detrimental impact this would have on the stability of the tree. One of the engineer's reports suggests the installation of a root barrier on the western side of the pipe. 12Amongst other things, the respondents' material (Exhibit 1) includes a 'Determination of a Tree Assessment Application' by an officer of Sutherland Shire Council. The determination dated 20 June 2012 gives conditional approval for the removal of the tree. The council officer states: "all attempts at retention should be explored before the tree is removed". Suggestions are made for alternative pipes and construction techniques to accommodate future root growth. However, removal was considered reasonable due to the need to cut structural roots to replace the pipe and the proximity of the tree to nearby dwellings. The council officer does note the fact that the tree is a remnant indigenous species in good health. 13Other material in the respondents' bundle includes a report they commissioned from a structural engineer. The majority of that report focuses on the damage to the western wall of the applicant's dwelling, a matter now withdrawn. However, the engineer notes the damage to the stormwater pipe and recommends its reinstatement but also the removal of the tree due to the need to remove structural roots.

Jurisdiction 14In applications made under Part 2 of the Act, the key jurisdictional test is s 10(2). This states that the Court must not make an order unless it is 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. If any of the tests in s 10(2) are satisfied, the Court has power under s 9 to consider what if any orders should be made. 15In this matter I am satisfied on the physical evidence before me and supported by the findings in the experts' reports that the roots from the Blackbutt are the predominant cause of damage to the stormwater pipe. If a new pipe is installed without any intervention with the tree, I am also satisfied that future damage is also likely to occur. 16Therefore as s 10(2) is satisfied, I can consider what orders are appropriate in the circumstances. This requires consideration of a number of discretionary matters in s 12 of the Act. 17Relevant here are the following matters:

• The tree is wholly located on the respondents' property. The respondents contend that there tree was there as a naturally grown tree and its growth is beyond their control (s 12(a));
• The removal of roots to enable the relaying or replacement of the pipe and associated building works will, in my opinion and that of the applicant's arborist, compromise the health and stability of the tree. Similarly, the installation of a root barrier between the tree and the pipe would require the same extent of root pruning with the same consequences. Therefore a root barrier is not a practical option (s 12(B2));
• The tree is a remnant of the original vegetation and as such contributes to the local ecosystem and to biodiversity. There is no evidence that this is a habitat tree (s 12(d));
• The tree contributes to the scenic values and natural landscape of both the respondents' property and the local area. It forms part of the tree canopy that contributes to the landscape character of the locality (s 12(e)(f));
• With respect to other factors that may have contributed to the damage, despite the age of the pipe, it appears to be in good order apart from the dislodged joints. The soil on which the pipe sits is not reactive and appears to have been well consolidated. Therefore there is nothing obvious apart from the roots that appear to have caused the damage (s 12(h)(i)).

Conclusions and orders 18While the tree is clearly a healthy specimen that makes a contribution to the ecosystem and to the general amenity of the area it has, unfortunately, caused damage to a large and important storm water pipe. 19Similarly, while I understand council's and the respondents' reluctance to remove the tree [likewise the Court considers tree removal as the last and least preferred option], rectification of the problem and the prevention of future damage will require the removal of large structural roots close to the base of the tree. 20I am satisfied that the range of practical options was thoroughly explored on site, particularly with Mr Dagg's assistance. It would be unhelpful of the Court to make orders that could destabilise a tree. 21After considering the evidence, I have determined that the tree is to be removed. Given the cost of removing such a large tree, the tree need not be taken to ground level but can be left as a 3m stump if the respondents so desire. However, the stump must be poisoned to prevent regrowth. 22The respondents contend that they should not be required to pay the full cost of removing the Blackbutt as it is a self-sown individual over which they have had no control. In the vast majority of tree disputes, orders for the payment of any costs - for pruning or removal of a tree, have been made against the tree owner unless there are particular circumstances that justify apportionment of costs between the parties. In this particular case I am not satisfied that the applicant should contribute to the cost of removal. As previously mentioned, in order to keep the respondents' costs as low as possible, the bulk of the stump can be retained. 23The parties have agreed to share the cost of replacing a 5 metre section of concrete pipe with PVC. Quotes for this work are to be limited to the removal and replacement of the 5 m section, the removal of any roots in the immediate vicinity of the pipe, and the consolidation of soil beneath the replaced section of pipe. Any additional work that the applicant wants carried out must be separately itemised and is to be paid for by the applicant. 24Therefore, the Orders of the Court are: (1)The application to remove the tree is upheld. (2)Within 30 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the tree to a height no greater than 3 m above ground. The remaining trunk is to be poisoned to prevent any regrowth of any part of the tree. (3)The applicant is to provide all reasonable access on two days notice for these works to be undertaken in a safe and efficient manner. (4)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. The arborist must ensure that no wildlife is harmed during the removal of the tree. (5)The applicants are to obtain two quotes for the replacement of 5 metres of storm water pipe, associated root removal and soil consolidation beneath the pipe [as described in paragraph 23 of this judgment]. Any additional works are to be separately itemised and paid for by the applicant. The respondents are to obtain at least one quote for the same work. (6)The parties are to exchange quotes and agree on the best quote. (7)The applicant is to engage and pay for the selected contractor. (8)The selected contractor is to liaise with the arborist to co-ordinate the removal of the tree and any necessary root pruning. If root pruning is carried out before the removal of the tree, it must not compromise the stability of the tree or the safety of anyone working in it. (9)The respondents are to reimburse the applicant 50% of the cost of the works in order 5 within 21 days of the receipt of a tax invoice for the completed works.

J Fakes 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: 17 August 2012