Moroney v John

Black v Johnson (No 2) [2007] NSWLEC 513 CASES CITED: Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr J Poole, agent

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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/

JUDGMENT 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerning six trees being five Camphor Laurels (Cinnamomum camphora) and one Cypress Pine (Cupressus spp) (the trees) located on 21 Wybalena Road, Hunters Hill. The property is owned by Ms Tanya John who has been represented throughout the proceedings by her father, Mr John Poole. The Court has been provided with a letter of authority for him to Act on her behalf. 2 The application is bought by Mr Moroney who lives at 25 Wybalena Road. The orders which Mr Moroney seeks are: o removal of the trees; o compensation of the sum of $11,401.10 (which includes a degree of indexation to the expenditure he has incurred); o replacement of the trees which he proposes be removed with small trees which would be limited in their growth to some 2 m or so in height; and o after the removal of the trees, the requirement that the respondent pay for a plumber to run an electric eel up Mr Moroney's sewer pipe from the adjacent Sydney Water construction access hole to ensure that the pipes are free of tree roots. 3 Mr Moroney's property, although not numerically adjacent to Ms John's property, is at the rear of 23 Wybalena Road and adjoins Ms John's access road at the point adjacent to the location of the trees. 4 The topography of the area slopes steeply towards an arm of the Sydney Harbour and there is a Sydney Water sewer trunk main running from the north west towards Ms John's access road and turning at approximately right angles, in the vicinity of Mr Moroney's house and at the point where his domestic sewer connection links with the Sydney Water main. 5 Mr Moroney's house is located on the former tennis court of the adjacent, uphill, substantial sandstone dwelling at 23 Wybalena Road. It was subdivided, along with other allotments, from the curtilage of that dwelling in the 1960s. 6 Mr Moroney's allotment is on two levels - the primary one (upon which the house is located) is the former tennis court and a second, smaller lower triangular element adjacent to two of the Camphor Laurels (being the downhill grouping of the trees) some 2 or 3 m below the former tennis court level. The house is a substantial one which was the subject of renovations and extensions in the early 1990s. 7 In his response to Mr Moroney's application, Mr Poole has raised the issue of the trees being present prior of the construction of Mr Moroney's house. We were faced with a deal of conflicting evidence from both sides on this issue. In Black v Johnson (No 2) [2007] NSWLEC 513, the Court considered the question of the position where the trees were in existence prior to be construction or erection of structures which were subsequently damaged by the trees. In Black, the Court set out a tree dispute principle which, relevantly, canvassed the question of whether or not there were alternative development opportunities available which would not have caused future conflict with the trees - taking account of the zoning and size of the allotment involved. 8 We are satisfied, in this case, from our examination of the site, that the location of the house currently occupied by the Moroneys is the only reasonable and logical place for the erection of a dwelling on this allotment (being an allotment in a subdivision consented to by the local council). We are therefore satisfied that, in the context of this case, the question of whether or not the trees existed (or their then size) prior to the erection of the house is a matter which would have no relevant bearing on the outcome of the case (including as to who should pay for any work which we might order to be undertaken or who should undertake any such works). The question of whether or not the trees should be removed, as discussed in Black, is not an issue appropriate to be considered in that context. 9 In the proceedings the material provided by both Mr Moroney and Mr Poole sets out in a history of various discussions which have taken place between them since about the mid-1990s. Although there is some disagreement as to the nature and timing of the exchanges, for the purposes of s 10(1) of the Trees Act, we merely need to be satisfied that there have been discussions between the parties in an attempt to resolve the matter. We are so satisfied and do not need to determine the factual differences between the parties.

10 We are also satisfied that a number of plumbing interventions were undertaken by Mr Moroney to clear the pipes and, in early 2001, he had undertaken an extensive but partial replacement of the pre-existing earthenware pipes with PVC replacements. PVC pipes now extend from at least the boundary of his property to a point in the vicinity of his kitchen steps and to the extension of plumbing to the ensuite bathroom to the master bedroom. These works evidence three matters which are relevant to issues to be to considered by us: o The first is the existence of earthenware pipes prior to any root problems being discovered and the construction of the extensions to the house over portion of those pipes prior to the root problems being discovered; o The second is that Mr Moroney made many contacts with Mr Poole over blockages which have taken place since the mid-1990s; and o Finally, we have Mr Moroney's own evidence there have been no problems from the Sydney Water trunk main connection to the end of the PVC piping since 2001.

11 We are obliged, at the commencement of dealing with the merits of this matter, to consider the question of whether we have jurisdiction pursuant to the Trees Act to deal with these matters. The Trees Act sets a number of tests in s 10(2) - any one of the four of which must be satisfied before the Court has jurisdiction.

12 We are satisfied, on the balance of probabilities, that it is certain that the root blockages of the pipes which have taken place in the past have been blockages caused by the upper level Camphor Laurels located on Mr Poole's daughter's property. As a consequence, the jurisdiction of the Court is enlivened - in that the trees, at the upper level, have caused damage, in the past, to Mr Moroney's property.

13 We next turn to the questions of discretion which arise in that context.

14 First, although not strongly pressed by Mr Moroney, his written submissions canvassed the issues of views and access to sunlight. As was pointed out to him on his property, Parliament has not given the Court power to deal with such matters and we do not do so.

15 Another matter which was discussed at some great length by Mr Poole in his written material concerns the Sydney Water main and re-lining works done and proposed to be done to that main. The Court does not have jurisdiction to make orders other than with respect to the property of a respondent or, for remedial or preventative works, the property of an applicant. We certainly do not have any jurisdiction to make orders which would bind Sydney Water although we note what Mr Poole has said Sydney Water will undertake.

16 We now turn to the question of the exercise of the Court's discretion with respect to the first element of Mr Moroney's application - that is the removal of the trees.

17 It is convenient to deal with the trees in three steps. The first is that concerning the lower (two) Camphor Laurels adjacent to the Moroney's downhill neighbour. Although a good deal of Mr Moroney's written material describes the damage it might be reasonable to consider has been caused by these trees to the sewer serving that property, that is not a matter properly before the Court at the present time.

18 We are satisfied that there is no evidence that these two trees, at the lower level, have caused damage to Mr Moroney's property and, given their location, we are satisfied that it is unlikely that they have caused damage to Mr Moroney's sewer. As a consequence of that, we are satisfied that there is no basis to make any order with respect to these two lower trees.

19 We now turn to the upper three trees and the associated Cypress Pine.

20 Mr Moroney took us to the central one of the upper group of three Camphor Laurels and invited us to inspect a number of matters impacting the trunk of the tree. As we also informed the parties we proposed to do, we made a subsequent short inspection of this tree by ourselves. We are satisfied that there is demonstrated past pruning damage in the vicinity of the base of the trunk; there is some decay in the trunk at the wounds caused by this past pruning; and some decay at the base of this tree. However, from our inspection, we are not satisfied that it is likely to fail in the near future. Consistent with the decision of the Court in Yang v Scerri [2007] NSWLEC 592, which suggested that a timeframe of the order of 12 months was appropriate for "in the near future" in s 10(2)(a) of the Trees Act, we are content in this context to adopt and apply such a timeframe. We are not satisfied that this tree is likely to fail within that time. We also note, however, that even if it were to fail, it is not likely to fail in the direction of Mr Moroney's property. Thus, there is therefore no specific basis upon which we could order the removal of this tree by itself. 21 We now turn to consider the upper three Camphor Laurels and the Cypress Pine as a group. 22 As part of Mr Moroney's submissions, he draws attention to the flooding that he says has been occasioned to part of his property by the build up of leaves and the like from these trees in the gutters and the extent of the necessity to clean out the gutters. The Court considered, in Barker v Kyriakides [2007] NSWLEC 292, the question, as a matter of discretion, of what should be the response to such maintenance issues in an urban setting. In Barker, the Court published a Tree Dispute Principle saying that, for those who enjoy the environmental and aesthetic benefits of trees in an urban environment, there needs to be an acceptance of ordinary maintenance responses to the presence of trees and that, unless there is some extraordinary circumstance shown, the Court will not ordinarily order any removal of or intervention with a tree under those circumstances. 23 We are not satisfied that there are any extraordinary circumstances in this case which would cause us not to adopt this principle and therefore we do not consider that there is any maintenance basis to order any interference with or removal of these trees. 24 The past damage to Mr Moroney's sewer pipe has largely been cured by the 2001 pipe replacement work. There is, however, an ongoing root problem in the earthenware section of the pipes (that is past the joint to the PVC piping that he has installed) which runs under the stairs to the kitchen area and beyond. It was Mr Moroney's evidence that, as a matter of convenience to the builders and cost to him, he did not consider that replacement of that section was warranted at that time in 2001 when the piping was replaced. We accept his uncontradicted evidence that there are still roots entering the earthenware pipe beyond the PVC connection. Although we do not consider that removal the trees are warranted on this ground, as a matter of discretion, we are satisfied that this problem should and is able to be dealt with in another fashion. 25 Mr Moroney also bases his claim on what he considers to be the risk to the foundations of his property - that being a matter to be considered against the third of the tests in s 10(2)(a) of the Trees Act. 26 In this regard, we have an expert report (which was served on the respondent as part of Mr Moroney's application) from Mr John Ford. On page 6, Mr Ford deals with the question of root spread from the Camphor Laurels into Mr Moroney's property. Mr Ford states, at paragraph 11 of his report: That three camphor laurel trees (4, 5 and 6) growing on the premises of 21 Wybalena Road, adjacent to the northern boundary of the Moroney's property have spread their roots into their property is clear from my site investigations, examination of photographs and experience of tree root behaviour. 27 He then continues to express the opinion that the roots would certainly have reached the foundations on the northern side of the house and further expresses the opinion that there is a very high likelihood that there may be cracks and fissures in or under the foundations which have been penetrated by roots emanating from the camphor laurel trees, exploiting water seeping down the shelf. 28 Mr Moroney did not take us to any existing damage which has been occasioned to the foundations or internal elements of his house. Therefore, although such roots were visible in a trench which Mr Moroney had dug to expose them, we are unable to be satisfied that it is likely that there will be damage to Mr Moroney's house in the near future [s 10(2)(a)]. As a consequence, we are satisfied that there is no basis to order interference with any of these three trees on this basis. 29 However, against the event that there is, at some stage in the future, actual structural damage to Mr Moroney's house or circumstances arise demonstrating that such damage is likely in the near future, we make three observations in reaching this conclusion. o First, there is nothing in the Trees Act that prevents Mr Moroney from making a further application if those circumstances do arise; o Second, Ms John is on express notice of the location of the roots exposed in the trench which Mr Moroney has dug; and o Third, Ms John is also on express notice of paragraph 11 of Mr Ford's report to which we have adverted. 30 If some future application is made, these matters are ones which might be taken into consideration by the Court on such an occasion - as might be consideration of what action, if any, Ms John may have chosen to take given the matters upon which she has expressly been put on notice. However, they do not provide any basis to justify intervention by us now. 31 We now turn to the question of the compensation claim made by Mr Moroney. 32 His application under the Trees Act was lodged on 19 November 2007. The pipe replacement works (being the most recent element of his compensation claim) were undertaken commencing in March 2001. Correspondence dated 26 November 2001 from Mr Bruce Tyler, the building contractor, included with Mr Moroney's bundle of material, makes it clear that: o First, the cost of the works Mr Tyler attributes to the trees was approximately $5,000; and o Second, and more critically, those works were completed and financial liability from them had accrued to Mr Moroney more than 6 years prior to lodgement of this application. 33 Mr Poole has raised the application the Limitation Act 1969 to the compensation claim. S 14(1)(d) of the Limitation Act 1969 has the effect of imposing a six year limit on such claims for compensation under the Trees Act. We are therefore satisfied that the compensation claim must fail. 34 Merit consideration of the final matter pressed by Mr Moroney, concerning replacement trees, does not arise given our position concerning the trees themselves. 35 However, during the course of the hearing, we asked the parties to consider and make submissions on whether or not it would be appropriate to order the replacement of the residual earthenware pipe section. We did so particularly in light of a number of matters raised by Mr Poole. During the course of the discussions on site Mr Poole said: Tree roots will get into his pipes unless he replaces all the earthenware pipes. 36 In his written submissions, Mr Poole states, at page 13 in a paragraph numbered (d), that: If we cut down the trees Mr Moroney will continue to have chokes due to the poor condition of his overall sewer pipes and his duel [sic] system of mixing clay with plastic. Also Mr Moroney is limited to access parts of his building to carry out pipe work due to builders rubble left by a builder in the past. 37 We agree with Mr Poole's submissions concerning the desirability of replacement of the remaining earthenware pipe. We are satisfied on the uncontested evidence of Mr Moroney concerning the continuing need for root removal from his toilet at the inspection point in the garage that the third test in s 10(2)(a) of the Trees Act is satisfied with respect to the residual earthenware pipes and they should be replaced. We are also satisfied that, although we are not permitted to order compensation for Mr Moroney's past expenditure, we are entitled to take it into account when considering who should pay for any future works. 38 Setting aside issues of indexation, Mr Moroney has spent of the order of $10,000, we are satisfied, in responding to tree root and tree issues. As a consequence of this, we conclude that the respondent should be required to pay the total cost of replacement of the residual earthenware section of the pipes. Although Mr Moroney has provided a rough estimate of $5,000 for this, we are satisfied that we should follow the past practice of the Court in requiring quotations for such a work. 39 The orders of the Court, therefore, are as follows: 1. No order is made to remove or interfere with any of the six trees the subject of the application; 2. If the applicant wishes to replace the remaining earthenware pipe section upstream of the PVC pipe junction in the vicinity of the kitchen steps, he is to obtain two written quotations for this work and serve copies of these on the respondent; 3. Within 28 days of the provision to the respondent of a receipted invoice for completion of the works in (2), the respondent is to pay the applicant an amount equal to the lower of the two quotations provided for in (2); and 4. If the works in (2) are not completed and the receipted invoice in (3) is not provided to the respondent within 12 months of the date of these orders, order (3) lapses.

Tim Moore Judy Fakes Commissioner of the Court Acting Commissioner of the Court

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