P. Baer Investments Pty Limited v University of New South Wales

APPLICANT Mr P Baer, director

LEGAL REPRESENTATIVES: RESPONDENT Mr G Mulligan Manager, Building & Grounds UNSW Facilities Management

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

07/20083 P. Baer Investments Pty Limited v University 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/

1 THE COMMISSIONERS: This a decision on an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by P. Baer Investments Pty Limited (the applicant) seeking the making of orders against the University of New South Wales (the University). The applicant owns a block of units at 1 Mulwarree Street, Randwick (the property) and the University a property opposite but with a street address of 1 Cowper Street, Randwick (the University property) .

2 The provisions of the Act require that the tree which is the subject of an application pursuant to the Act has to be located on land adjoining the property claimed to be damaged.

3 In these proceedings, the applicant's property is separated from the University's property by Mulwarree Street.

4 A conventional understanding of the word adjoining would not lead to the conclusion that this provision was satisfied in this instance.

5 However, the Court of Appeal, in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, held, per Kirby P at p 433, that the word adjoins is to be given a wider meaning and the use of the word did not require, in a contemporary context, geographic contiguity.

6 Although Hornsby v Malcolm so held, specifically for the purposes of determining a zoning issue, that a property was to be regarded as adjoining the other property which was across the road, we are satisfied that the principle there set out by the Court of Appeal should be adopted as applicable to similar wording in this provision of the Act.

7 As a consequence, for the purposes of this application, we are satisfied that the properties are adjoining for the purposes of the Act.

8 We are satisfied, on the uncontradicted oral evidence given on behalf of the applicant, that the local council has been served with the application and has not attended this hearing.

9 The University is represented by Mr Mulligan, its officer relevantly responsible for property maintenance matters.

10 We are obliged to consider a variety matters pursuant to section 10 of the Act.

11 The first of these is that we are required to be satisfied that there has been a reasonable effort made to reach agreement between the party seeking orders pursuant to the Act and the owner of the land upon which the tree is situated. We are satisfied that that has occurred on the basis of the acknowledgment from Mr Baer, on behalf of the applicant, and from Mr Mulligan that there have been attempts between the parties to resolve the matter and that it has not been possible to reach a mutually satisfactory conclusion.

12 We have in evidence arborists' assessments from Botanics Tree Wise People Pty Limited of April 2006 and John Ford identifying the tree roots which have been taken from the sewer on the property as being from a species of fig.

13 It is not contested that, in the immediate vicinity, on the University's property there are a number of fig trees nor is it suggested that there are any other figs in the vicinity of the property whose roots could have entered the property's sewer line.

14 We are therefore satisfied that the tree roots entering the applicant's sewer line are from figs located on the University's property - there being no reasonable alternative to such a conclusion.

15 We have, therefore, concluded that, pursuant to s 10(2)(a) of the Act, the University's trees have caused and are likely to cause damage to the property.

16 As there is no application, in these proceedings, for any active interference with the structure of the trees, the majority of the matters that are brought into consideration by s 12 of the Act do not require to be considered by us.

17 The claim that is made in these proceedings is limited to a claim for compensation for past works required to be undertaken and for future works proposed to be undertaken to removes the possibility of future interruption by the tree roots of the sewer line.

18 The applicant seeks an order for the payment to it, by the University, of $13,062.64 together with an order that the University meet the reasonable costs of the replacement of replacing or relining of the sewer from where it commences to rise in the building to serve the individual units to Sydney Water's trunk main sewer located in the centre of and underneath Mulwarree Street.

19 With respect to the first of these claims, the University resists being made to pay any contribution at all for damage prior to the date upon which it was notified of the problems. The University also resists making any significant payment to the past costs after the date of notification.

20 Mr Mulligan also put that it is appropriate that there at least be some apportionment between the parties of the future remedial costs element of the application.

21 We have had tendered an e-mail behalf of the applicant to an officer of the University dated 5 July 2004 referring to a blocked sewer having occurred some five weeks earlier and noting that a further blockage on that day, 5 July 2004.

22 We have no further evidence of any notification to the University earlier than that date.

23 We are of the view that it is not appropriate to require the University to meet any portion of the costs prior to the date upon which the University was first notified of the problem.

24 As a consequence, we have concluded that the costs on and before the first of June 2004 are to be discounted.

25 The second matter of the damages claim that is of concern to us is a claim for expenses for to damage carpet in two units. This is supported by a quotation for removal and replacement dated 13 March 2007 for the re-carpeting of two flats.

26 We have no evidence before us to of what might have beeen the prior condition of those carpets nor of the degree to which the original carpet might have been depreciated nor the extent to which a replacement of the carpet might have been required, in the ordinary course of a prudent tenancy operation run by the applicant as a landlord.

27 We are therefore not satisfied that there is any rational basis upon which to include all or part of the estimate for this damage in any order that we might make.

28 We are satisfied that there are a number of competing matters to be weighed in apportioning costs for the damage caused by the trees.

29 The first is the age of the structures erected on the applicants' land; second is the nature of the construction of the sewer line and the third is the comparatively greater age of the trees which are causing the damage.

30 We turn to how that apportionment should be spread between the parties

31 We are satisfied, on balance, that, in the ordinary course of events, the likely useful life of the sewer line would have been considerably shortened as a consequence of intervention of University's tree roots but that is not such as to require the University to make the totality of the cost of replacement.

32 We are satisfied, based on the comparative age of the trees; proximity of the trees to the property and the possible forseability of damage being occasioned by the tree roots at the time of the property was constructed (this being prior to the applicant's purchase of it) that the University should only be required to meet 60% of the costs and that the applicant should meet 40%.

33 Rounded to the nearest $100, on our calculations, that means a requirement of the University to pay the applicant the sum of $4200 toward past damage with such payment to be made in to within 28 days of the date of order of the Court.

34 We therefore now turn to question of the replacement of the sewer.

35 We are satisfied that: o the sewer needs to be replaced or relined; and o the costs of doing so should be on the same proportion as for past damage.

36 We therefore propose to order that the applicant be required to obtain three quotations for submission to the University and that the University meet 60% of the cost of the lowest of those quotations. The quotations are to be for the replacing or relining from the ground level connection of the units to the Sydney Water trunk main sewer located under the middle of Mulwaree Street.

37 Mr Mulligan also sought that the applicant give a deed of release to the University and that this be made a condition of the applicant in obtaining the benefit of any order that the Court might make.

38 We have concluded that a deed of release should not be required with respect to the compensation payment for the past damage as that has been finalized by our determination.

39 However, we have concluded that, for the future work to be undertaken to the sewer, it would be appropriate to require a deed of release.

40 We are satisfied that this release should be in much more limited terms than that proposed in the University's draft deed of release tendered to us.

41 This draft required a release for any or all personal injury or property damage whatsoever or howsoever occasioned, in connection with the property, caused by the University's tree roots.

42 We are satisfied that that is far too broad a limitation.

43 The orders of the Court will provide that a deed of release should be entered into by the applicant in broad terms of the draft release save and except that: o as to the provision of cl 6(a) (which is a warranty as to taking legal advice) - as the applicant will not have had the opportunity to take legal advice with respect to the condition now to be imposed as part of the orders, this will be deleted; and o the deed of release should be limited to personal injury or property damage caused by tree roots entering into and/or blocking and/or obstructing the sewer service line from the Sydney Water trunk sewer main in Mulwarree Street to the property.

44 The exhibits will be retained and the orders of the Court will be issued to the parties to give effect to this decision.

Tim Moore Judy Fakes Commissioner of the Court 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.