Spinelli v Johnson & ors

Judgment 1COMMISSIONER: The applicant has owned her Picnic Point property for almost 30 years. She contends that for the last 15 years roots from an Evergreen Alder (Alnus sp) have been causing blockages to the sewer line that services her property. The applicant maintains that about 20 years ago, the first and second respondents planted the tree directly over a water board drainage easement located on their property, which connects the applicant's property to the street behind. 2The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the tree and repairs to the sewer pipe at the first and second respondents' expense. Apart from damage to property, the applicant is also concerned about the potential for injury or illness as a result of overflowing sewage. 3The first and second respondents have recently sold their property and the third respondent, the new owner, has been joined as a party to these proceedings. 4The new owner values the tree for its amenity and the privacy it affords his dwelling and does not wish to have it removed. He is also reluctant to dig up a portion of the landscaped front garden behind a stone retaining wall for the replacement of the sewer. However, he does not wish the applicant to be subjected to the consequences of a backed up sewer. 5The first respondent contends that as the alleged damage is on his property, it is beyond the Court's jurisdiction to make any orders with respect to repair of the sewer pipe. 6The respondents' property is burdened by an easement to drain water and sewage from the applicant's property. Documents attached to the first respondent's affidavit indicate that the sewer pipes pre-existed the subdivision of land that created the respondents' lot. Whether the pipes belong to the applicant or the Metropolitan Water and Drainage Board (as it then was) is unclear, however, the pipes are located on the respondents' land. 7The tree in question is located close to the respondents' street frontage. It is several metres from a sewer inspection point/riser located in a retained garden bed and close to the stone retaining wall. Apart from the Alder, there is a mature Acer negundo (Box Elder) growing in the respondents' rear garden, close to or within the area of the easement. This tree is approximately half way between the applicant's laundry and the Alder. 8The last recorded blockage was in September 2011. According to the applicant, a plumber cleared the blockage and inspected the pipe with a camera. The plumber told the applicant he found roots in a cracked section about one metre from the neighbours' street boundary. There is no photographic record of this inspection. The tax invoice for the work states that the sewer was unblocked from the respondents' property, roots were found and cut, and the pipe was checked to 15m upstream. There is no mention of a crack; the invoice states "found roots in IO" [Inspection outlet]. 9Prior to this event, invoices attached to the application claim form show that blockages were cleared twice in June 2011 and once in August 1995. 10According to the applicant, the blockage causes the sewer to overflow from an inspection point behind an outdoor laundry and toilet onto a concrete path between the building and a garden bed that adjoins the applicant's side fence. The applicant suspects that while the system is not currently blocked, it may be slowing down again.