Ocampo v Congregation of Jehovah's Witnesses [2020] NSWLEC 1528 | Case summary

Land and Environment Court (NSW)|2020-09-29

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: Mr and Mrs Ocampo have made an application under s 7 of Pt 2 of the Trees (Disputes Between Neighbours Act) 2006 (the Act) to remedy damage being caused to sewer pipes and stormwater pipes by roots emanating from trees in a neighbouring property, and to prevent damage that they are likely to cause in the near future. The properties are located in Seven Hills.
The applicants provided 'pipecam' footage which exhibited extensive root penetration throughout the pipes, with root entry points primarily located at welded junctions.

The onsite hearing

The hearing was conducted on 29 September 2020 with both applicants, and the respondent's Solicitor, Mr Bryan, in attendance.
Mr and Mrs Ocampo and the Congregation of Jehovah's Witnesses, the respondent, share a common side boundary between their properties. About 35 years ago the respondent planted trees in a raised garden bed, which is adjacent to the applicants' front yard and in close proximity to the side of their house.

Jurisdictional requirements

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
As required by s 10(1), I am satisfied that there has been an attempt by the applicants to reach agreement with the owner of the land on which the tree is situated. The Ocampo's application included copies of extensive correspondence with Mr David Winder, the respondent's representative, since January 2020.
The next major test that is posed, by s 10(2) of the Act, is that the Court must not make an order under this Part unless it is satisfied the tree/s concerned: (a) have caused, is causing or is likely in the near future to cause damage to the applicant's property, or (b) is likely to cause injury to any person.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' with respect to damage is deemed to be a period of 12 months from the date of the determination. Only one of the above options need be satisfied to engage the Act.
Based on the characteristics of the roots shown in the pipecam footage, and particularly, on my identification of live roots torn from the stormwater access pipe during the site inspection, plus samples provided from the sewer line, I am satisfied that the roots emanate from a fig tree. The lenticel pattern is distinctive, and the presence of latex in the live root samples left me in no doubt as to the origin. Though fig roots are often extensive, the only fig trees in sufficiently close proximity to the applicants' property are two Ficus microcarpa var. hillii (Hill's Weeping Fig) (the trees), growing in the adjacent garden bed of the Congregation of Jehovah's Witnesses property. I am satisfied that the roots originate from one or both of these fig trees, and that s 10(2)(a) is thus engaged.
If the Court's jurisdiction is engaged, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Act.

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Act.

The tree/s are located in the respondent's property (subs 12(a));
Pruning or removal of the tree/s would require consent from Council under the Environmental Planning and Assessment Act 1979 (subs 12(b)).
The trees contribute to protection from the sun, and from wind, to the natural landscape and amenity of the respondent's property, and to the immediate locality. Both trees are close to, and prominent from the street, they are readily visible from neighbouring houses and thus have intrinsic value to public amenity (subss 12(b3), (e), (f)).
With a dense canopy, moderate size, and being a native species, the trees could be expected to provide food and shelter for local fauna and thus would contribute to local biodiversity (subs 12(d)).
The trees are likely to be providing some benefit to soil stability, and, particularly, to absorbing water and reducing run off (subs 12(g)).
Subsection 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. * In Black v Johnson (No 2) [2007] NSWLEC 513, the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make. * The age and nature of the structure must also be considered. A certain amount of wear and tear is expected to arise with any structure over time. The Court considers these matters when determining the extent to which a tree may or may not have caused the alleged damage. * The house was built in 1995, and presumably the pipes were also installed at this point. The pipes have been subject to normal movement within the reactive clays common to this region, but the pipecam footage did not display breaks in the pipes as a result of pipe movement in soil, other than one ambiguous crack near a junction. * The video footage shows the entry of roots at various plastic weld junctions. This suggests that these welds have either partially failed since installation, or were installed inadequately, with tiny gaps in the welds. Either way, this has likely allowed sufficient water to leak from the pipes to provide an hospitable environment for root growth near the pipes, for root hairs to enter the pipes, and subsequently thicken and develop the blockage. Roots are not ordinarily attracted to, nor can they normally penetrate, properly installed PVC pipes.

Conclusion

I have examined the pipes and adjacent trees, and have reached the following conclusions: 1. I am satisfied that the roots located in the applicants' sewer and stormwater pipes originate from one or both of the fig trees growing in the neighbouring Congregation of Jehovah's Witnesses property. 2. I am satisfied that these roots have caused damage to the pipes, and the jurisdiction of the Act is engaged. Mr and Mrs Ocampo's proposed order for compensation for pipe repair will be granted, in part. 3. The root entry pattern displayed in the video footage suggests that various welded junctions have either partially failed since installation, or were installed inadequately. With consideration for wear and tear which is expected to arise with any structure over time, and of the fact that the trees were there first (subs 12(i)), the cost impost of the required works shall be apportioned evenly between the parties.

Orders

The orders of the Court are: 1. The applicant and the respondent shall each procure two itemised quotes from licensed plumbers, based on the same specifications, to replace the damaged sections of sewer pipe and stormwater pipe, such that all junctions which exhibited root entry are removed and replaced, and the welded junctions between services and the main pipes are re-established. The quotes shall all include a warranty for workmanship by the plumbers. 2. From the four quotes, the applicant shall select a plumber to complete the works. 3. Within 14 days of receipt of a paid invoice for these plumbing works, the respondent shall pay the applicant the equivalent of 50% of the lowest quote for these works, by E.F.T. or Bank Cheque. 4. The respondent shall allow access for these works, if necessary, during normal working hours, upon receipt of 72 hours written notice, including by email. 5. If the applicant fails to complete the works and present invoice within 6 months of these orders, then these orders shall lapse. ……………………. J Douglas 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: 30 October 2020

Ocampo v Congregation of Jehovah's Witnesses

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