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[2010] ACAT 10
ACT Civil and Administrative Tribunal
2010-03-09
Original judgment source is linked above.
The applicant accepts Mr McInnes's evidence that the tree is not causing damage to the garage, so we have considered this criterion in relation to the house and the stormwater drains.
On the issue of the effects of the Golden Ash on the stormwater drains and the house we find the evidence of Mr McInnes persuasive and generally to be preferred to that of Dr Coyne. We accept Mr McInnes's evidence that the soils on the property are borderline highly reactive. We also accept his evidence that the section of the stormwater drains running east-west at the rear of the house passes through the root zone of the Golden Ash. This is consistent with the drainage plan at T39, which indicates that stormwater drain is located at some distance from the wall of the house.
The Tribunal has noted Mr McInnes's evidence that the Golden Ash has been having an influence on the soils at the rear of the house on two bases. Firstly its roots are drying the soils, particularly in dry weather when trees extend their zone of influence. This is confirmed by the CSIRO document. This drying causes shrinkage of the soil. Second the roots have damaged the stormwater drain, allowing water to escape when there is rain, and causing wetting and swelling of the founding soils. The drying effects of the tree roots and the wetting effects of the leaking drain exacerbate the natural processes of rain and drought. Mr McInnes's evidence is consistent with the guidance in the CSIRO document, which warns against the dangers of damage to homes from tree roots, especially on highly reactive soils.
The Tribunal takes the view that the evidence establishes that there was deterioration in the condition of the structure of the house in the November to December period of 2009 in that the crack in the brickwork at the rear of the premises widened. The widening of the crack was due to subsurface soil movement. That movement was exacerbated by the drying effect of tree roots at the rear of the property, one of those trees being the Golden Ash. The movement was also exacerbated by the introduction of water into the subsoil due to damage to the stormwater drains caused by tree roots, one contributing tree being the Golden Ash. We note Mr McInnes's evidence in the addendum to his report that such movement is consistent with the advice in his initial report that the tree will progressively cause damage to the residence as per the recommendation in his initial report. The Tribunal is of the view that the widening of the crack in such a short period indicates that further and substantial damage is threatened to the house unless preventative action is taken.
Although the Tribunal is satisfied that the Golden Ash is causing damage to the wall of the house closest to the tree, we are not satisfied that there is sufficient evidence that the tree is causing or threatening to cause damage to the western and northern walls of the house.
Mr McInnes has provided evidence that, as a consequence of the entry of the roots of the Golden Ash and the need for unblocking by means of an electric eel on several occasions, the drainage system has been damaged and further damage is likely if the Golden Ash is not removed. The roots from the two eucalyptus trees that have been removed may also have caused damage to the drains. However, The Tribunal is satisfied that the Golden Ash has been a significant contributing cause of damage to the drainage system at the rear of the house and threatens to cause further damage.
It is necessary to consider whether the drainage system is a substantial structure or service and whether the damage is substantial. As noted in a number of cases in the former Administrative Appeals Tribunal, for example Maleganeas and Conservator of Flora & Fauna [2007] ACTAAT 24 (15 November 2007), the Full Federal Court has considered the meaning of the word 'substantial'. The Court concluded that the word meant, large, weighty, considerable or big, and not trivial, minimal or nominal. This interpretation is helpful in the present case, and we find that the drainage system is a substantial service and that the damage being caused by the Golden Ash is also substantial. The respondent accepts that the house is a substantial building.
The Tribunal must also be satisfied that 'all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective'. There was no evidence of a remedial treatment for the drying effects of the tree roots on the founding soils in the vicinity of the southern wall of the house. Once the structural integrity of the drains had been breached, removing the roots by electric eel and the regular introduction of chemicals might keep the drains clear of roots but would not rectify the damage to the drains and the continuing discharge of water from the damaged drains.
Replacing the drains with p.v.c. pipes would be effective in stopping discharge of water from the pipe. However, this would no doubt involve considerable expense, and in the Tribunal's view could not be regarded as being either remedial or reasonable. Nor would this overcome the problem of the drying effects of the tree roots on the soil and consequential effects on the founding soils.
The Tribunal has determined therefore that in the particular circumstances of this case there are no other reasonable and effective remedial treatments to protect the house and the drains.
We find that this criterion has therefore been met.
APPLICANT: GARRY ROBERT SVENSSON & ROBYN LOUISE SVENSSON
DATE/S OF HEARING: 10 February 2010 PLACE: CANBERRA
DATE/S OF DECISION: 9 March 2010 PLACE: CANBERRA
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
SVENSSON
CONSERVATOR OF FLORA & FAUNA
Case Law: Maleganeas and Conservator of Flora and Fauna [2007] ACTAAT 24 (15 November 2007)