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.