Samuel v Euston

Framework of the Act 5For applications involving damage caused by trees, the framework for consideration under Part 2 of the Act requires the Court to be satisfied of several matters. 6Damage must be to property on the applicant's land. There is no dispute that all sections of the sewer pipe that are part of this claim are on the Samuels' land, a matter of which I am also satisfied based on findings described below. 7Trees on adjoining land must be a cause (but not the only cause) of the damage. Again, there is no dispute that roots of the Eustons' fig trees have contributed to the damage, a matter of which I am also satisfied based on evidence put forward at the hearing. 8This application seeks orders only for compensation for damage. Section 9 of the Act gives the Court jurisdiction to make orders for compensation (s 9(2)(i)) as it thinks fit (s 9(1)) after considering a range of matters set out in s 12. 9In effect, this claim for compensation forms two parts. Firstly, a significant part of the works done by the Samuels' plumber relates to a section of the pipe, east of their dwelling, which was the subject of orders from the earlier application. The Court's orders were for the Eustons to engage a plumber to replace this section of the sewer. The Samuels say they had no choice but to engage a plumber to carry out these works urgently. I must determine if it was necessary for the Samuels to carry out those works, and therefore if it is reasonable for them to be compensated, and the quantum of any compensation. 10Secondly, I must determine if tree roots were a cause of damage to other sections of the Samuels' sewer, mostly to the south of their dwelling, which were also repaired and, if so, what level of compensation would be appropriate for the cost of those works.

Timeline 11The following timeline outlines key events. ~1954 The dwelling on the applicants' land was constructed. All terracotta sewer pipes on the property are likely to be the same age as the dwelling. 2002 The Eustons purchased their property. 2010 The Samuels purchased their property, which was previously owned by Mrs Samuel's aunt. Both parties state that they were aware of sewer problems caused by roots of the fig trees prior to 2012. 1/3/2012 The Court gave orders for the Eustons to replace a section of the Samuels' sewer, east of their dwelling, within 90 days. Negotiations between the parties followed. 23/3/2012 The Samuels' sewer on the south side of their dwelling became blocked. This section was not part of the earlier application. A plumber (Same Day Plumbing) was called and some work carried out. The invoice for this work (invoice no. 382) was for $1,272.96. The plumber stated that further works were required. The plumber identified that repair works would be required for part of the sewer east of the dwelling, a section that was included in orders from the earlier application. The Samuels say that they informed Mr Euston of these events on the day. Mr Euston says he was not informed at this point. 30/3/2012 Same Day Plumbing began further works that carried on for several days. Works included replacement of sections of the sewer covered by earlier Court orders and replacement of sections not part of the earlier application. Mr Euston states that he was first notified of the works at this point (30/3/2012). Works were completed on 11/4/2012. 27/4/2012 The Eustons' plumber recorded CCTV footage of the sewer pipe near the Samuels' dwelling and reported that only fine hair-like roots were present. 3/7/2012 The Eustons' plumber completed the outstanding works from the Court's orders of 1/3/2012.

Evidence presented 12At the onsite hearing the Samuels showed sections of pipe and roots they had retained from both the southern side and eastern side of the dwelling. This evidence supported their photographic evidence, taken during the works, that is relevant to other areas. Photos in Exhibit D show large tree roots growing around the pipes and junction to the east of the dwelling. Photos in Exhibit F show masses of tree roots within sections of pipe to the south of the dwelling, outside the laundry. Photos in Exhibit E show a large live root collected next to the broken section of pipe east of the dwelling. 13The Eustons presented four invoices for which they seek compensation. Two relate to works which were included in the Court's orders of 1 March.

• Invoice 05003/4/2012$8,361.50
• Invoice 039411/4/2012$371.25 14Two invoices relate to works on the south side of the dwelling, which were not part of the earlier application.
• Invoice 038223/3/2012$1,272.96
• Invoice 039311/4/2012$1,660.00 15All invoices refer to the presence of roots and the need to replace affected sections of the sewer. Extensive excavations were required to replace some sections. 16Mr Euston offered to show CCTV footage taken by his plumber. As this was taken after repair works were completed by Same Day Plumbing, the relevance of this was doubtful and it was not viewed.

The Samuels' submissions 17The Samuels say they had no choice but to organise a plumber to urgently repair the blocked sewer on 23 March, as to not do so would have endangered their health. They say they rang several plumbers and only one could come on that day, so they felt they had to book that plumber. They say all damage had been caused by roots of trees on the Eustons' land. They say photographs show that roots were alive at the time of excavation. They say the lack of large roots in later CCTV footage is due to the pipes having already been flushed out and repaired by their plumber. They insist they informed Mr Euston of works on 23 March. They say they have been inconvenienced by the long period during which their garden was a mess from the works, and by having to pay for all of the works.

The Eustons' submissions 18The Eustons say they were not informed of any works until 30 March. Mr Euston inspected the works on that day. Mr Euston says the tree root he saw on that day appeared to be dead. The Eustons say CCTV footage taken on 27 April shows no large roots. They say the lack of communication from the Samuels denied them the opportunity to get quotes for the works or to otherwise have input into the repair process. They say the costs of the works appear excessive. They accept that roots from their fig trees caused some damage but dispute the extent of that damage. They further state that they had earlier offered to replace the Samuels' sewer pipes at their own expense but the Samuels had refused this offer because they were concerned about disturbing their property.

Findings 19Based on the evidence provided during the onsite view and in photographs, and relying on my own expertise in this field, I am satisfied that roots were a major contributing factor to the condition of the Samuels' sewer pipes, both to the south of their dwelling and to the east, and to the blocking of those pipes. I am further satisfied that those roots were from the Eustons' fig trees. Whether or not those roots were dead in March 2012 I regard as irrelevant, as it is clear they have been live roots and have caused damage. As all other jurisdictional tests are also met, the Court can make orders for compensation. 20The matters under s 12 that are relevant here are: (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) 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, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, 21Other contributing factors include the age of the pipes and the omission of the applicants to act earlier. 22The Samuels' terracotta sewer pipes are approaching sixty years of age. The age and condition of old sewer pipes has been considered in several matters, for instance P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128. Pipes of this age usually have some material deterioration, including cracks at their joins, allowing roots to enter. I am satisfied that the age of the Samuels' pipes has contributed approximately 50% to their recent condition, reducing the sum of compensation by 50%. 23I do not question that, once the sewer became blocked, the Samuels acted in a reasonable manner considering the need to protect their assets and personal health. However, prior to even the earlier application to the Court, both parties were aware that roots from the fig trees had caused problems with sewer pipes on the applicants' land. Had the Samuels accepted the Eustons' earlier offer to replace their pipes with PVC the urgent nature of the works may have been avoided. The Eustons would have paid for the works but, given a less urgent timeframe, it is likely that they may have obtained cheaper quotes. I am satisfied that a further reduction of 15% of the total cost of works is a reasonable reflection of this. 24As a result, the Samuels will receive 35% of the total costs shown on the four invoices. To the nearest $10 this is a sum of $4,080. It is reasonable that the Eustons should have 60 days to make such payment.

Orders 25As a result of the foregoing, the orders of the Court are: (1)The Eustons are to pay the Samuels a sum of $4,080 within 60 days of the date of these orders. D Galwey 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: 26 November 2012