The Owners - Strata Plan 8412 v The Owners - Strata Plan 64221

The hearing

1. The final hearing in these proceedings took place via audio-visual means on 20 January 2022. The Applicant filed and relied on expert reports from George Palmer (arborist), Catriona Mackenzie (arborist) and John Riad (engineer), and affidavits of Anna Panagakos, a lot owner in the Applicant's strata scheme. The Respondent filed and relied on expert reports from Alex Kurath (arborist), Joshua Vorias (plumber) and Professor David Carmichael (engineer and project manager), and the affidavit of Giovanni Angelucci, chairman of the Respondent's strata plan.
2. Mr Chen, of Counsel for the Applicant, objected to Professor Carmichael's report, arguing that it was not truly independent, nor could it "…be seen to be the independent product of the expert…" (Whitehouse v Jordan (No 2) [1981] 1 WLR 246 at [256H]). The Respondent's letter of instruction to Professor Carmichael included: "So essentially you are retained to give expert opinion whether you agree with the assumptions about the deteriorations in the pipes and countermand what is alleged by Mr Riad". Mr Chen argued that such an instruction did not lead to a report that could be seen to be independent. Mr Chen took the Court to sections of Professor Carmichael's report that favoured other reports by the Respondent's experts over those of the Applicant's experts, or omitted to address shortcomings in those reports. Professor Carmichael did not visit the site. He reviewed the reports of others and gave his opinions on likely causation of damage and his preferred remedies. His opinions were either of a general nature or based on the findings and recommendations of others. I accepted the report, giving it appropriate weighting based on its limitations. The instruction quoted above requested Professor Carmichael's opinion on whether he agreed with assumptions and whether he might countermand certain 'allegations'. He was not instructed to 'agree' or 'countermand'. In preparing his report, Professor Carmichael agreed to be bound by Sch 7 of the Uniform Civil Procure Rules 2005 (UCPR). On my reading of his report, I found his opinions were presented in a reasonably objective manner.
3. Likewise, Mr Nesci, solicitor representing the Respondent, objected to an annexure in Ms Panagakos' first affidavit and to her second affidavit in its entirety. I could see no reason to refuse the annexure, being an invoice for the insurance excess relating to floor damage in one unit. The second affidavit was filed after the final date for the Respondent's evidence set out at the Directions hearing. It included some emails showing early attempts at correspondence around the tree issue. I accepted it on the basis that it might assist the Court and I could not see that doing so would harm the Respondent's case.
4. At the hearing's conclusion, I determined a site view was not required. I have been able to reach this decision relying on the available evidence and extensive submissions made during the hearing.

Framework for this decision

1. As permitted by s 7 of the Trees Act, the Applicant has applied for orders to remedy damage, and to prevent further damage, to their property as a consequence of trees on adjoining land. The orders sought are those that the Court has the jurisdiction to make at s 9 of the Trees Act. However Commissioners of the Court do not have the power to make a costs order, as sought by the Applicant - should they wish to pursue that element, they would need to file a Notice of Motion to be determined by a Judge or the Registrar of the Court.
2. Orders can only be made if the Court is satisfied of certain matters at s 10 of the Trees Act. 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has 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.
3. Before making orders, the Court must consider relevant matters at s 12 of the Trees Act. 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (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, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, 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 any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case.

The Applicant made reasonable effort

1. Correspondence between the parties (Exhibits G and 1) demonstrates that the Applicant made a reasonable effort to reach agreement in accordance with s 10(1) of the Trees Act.

Have the trees caused damage to the Applicant's property?

1. Both trees in the original application are adjacent to the common boundary shared by the parties. The Applicant alleges that the roots of Tree 2, the weeping fig, have damaged their sewer pipe and its branches have damaged their roof guttering. This tree has surface roots extending from near its base across a grassed area on the Applicant's property between their building and the boundary.

Sewer pipe

1. Invoices from plumbers demonstrate that the Applicant's sewer pipe was cleared in February 2021 by Overall Plumbing at a cost of $550 and in March 2021 by West Pymble Plumbing at a cost of $699.98. Both invoices mention tree roots found in the pipes. Overall Plumbing's invoice states that they were called to clear a sewer pipe, which they accessed by removing a toilet pan. West Pymble Plumbing's invoice states that they also cleared roots from a sewer pipe, but also that a stormwater line had been cleared a week earlier. The February pipe clearing appears to coincide with the blockage that caused overflow from the pipe to damage the floor of a unit on the Applicant's property (resulting in the Applicant's $5,000 insurance excess reimbursement claim).
2. Prior to this, in September 2020, Pipe Relining Solutions quoted to reline the pipes. The quote identifies that the sewer pipe is earthenware and describes it as "root infested". It remains unclear why the quote was obtained and why it was not acted upon.
3. Mr Chen referred in his submissions to an 'expert report' by Paul Ramondino of Overall Plumbing. That report is attached to Mr Vorias' report (Exhibit 2) but was apparently not filed directly by the Applicant. Mr Ramondino's report is undated and does not comply with Sch 7 of the UCPR. The report describes the visits to clear the Applicant's sewer pipe, where tree roots were found to be entering via joints in the terracotta pipe. Mr Ramondino wrote: "We are suspecting these tree roots are coming from neighbouring property [Respondent's address]. Most affected sections of the sewer are in close proximity to nearest tree of neighbouring property." Mr Ramondino recommended relining of the pipe. He did not suggest that tree removal was required.
4. Mr Palmer (arborist) wrote in his 9 June 2021 report (Exhibit E, s 3.1) that both trees have roots that "extend to the [Applicant's] building footprint and have affected the external wall and underlying slab." He presented no evidence that the wall and slab were damaged, and this groundless opinion is contrary to the findings of the engineers' reports. At s 4.1 Mr Palmer wrote: "Ficus roots have penetrated plumbing services…" but does not explain how this conclusion was reached. He repeated this assertion, again without any explanation, in a subsequent report dated 15 October 2021. No report that is before the Court provides identification of the roots found in the pipe. Other trees are in the area, including paperbarks on the Applicant's property.
5. Ms Mackenzie (arborist) concluded on p 7 of her report (Exhibit D) that "…the roots of one or both of the fig trees are the most likely to be those found in the affected sewer pipes. Based on the proximity of the site's sewer pit, the roots of Tree 1 [the rubber tree] are the most likely source of the pipe blockage, however, this is not confirmed by root mapping or other means." It became apparent when Ms Mackenzie gave evidence during the hearing that the sewer pit to which she referred was a stormwater pit, unrelated to the sewer pipe, so her conclusions could not be relied upon. Regardless, Ms Mackenzie made it clear that roots in the pipe had not been identified and her conclusions were 'best guesses'.
6. Mr Riad (engineer) wrote at p 10 of his report (Exhibit C): "The Author is of the view that the breach of the terracotta pipes is due to the infringements of the root systems belonging to the adjacent offending trees." No particular tree was identified as being the cause of any damage. Mr Riad recommended replacing the pipes with PVC pipes, rather than relining the existing terracotta pipes. He also noted (p 11) that "…simply replacing the affected plumbing provisions does not address the issue at hand holistically, as offending tree roots (as pictured within the CCTV imaging above) has not been addressed [sic]."
7. The report (Exhibit 1) of Mr Kurath (arborist) describes the trees. Mr Kurath found no damage to the Applicant's building wall but did not address the issue of roots in pipes. Mr Kurath recommended the installation of root barriers to prevent damage to the building in future as the trees grow.
8. Mr Vorias (plumber) found in his report (Exhibit 2) that the terracotta pipes were in relatively good condition. Mr Vorias used a plumber's CCTV to investigate the pipe, finding a blockage at the 'ultimate point' of his investigation, "…being approximately halfway in the building itself" (s 13), but the pipe being otherwise clear of roots other than minor remnants. Mr Vorias did not identify any tree that has caused damage. Mr Vorias expressed an opinion that the pipes are at least 47 years old, while terracotta pipes such as these have a life expectancy of approximately 50 years. He concluded that the pipes could be relined.
9. Professor Carmichael did not visit the site and did not express a view as to which tree or trees might have their roots in the sewer pipe.
10. I include above the findings from the various reports regarding tree roots in the pipes to support my own finding that, despite the many hours spent on investigating the pipe blockage and assessing trees, the source of tree roots within the pipe has not been identified. Mr Nesci submitted that roots from the Respondent's trees would need to grow under the presumably deep footing beneath the western wall of the Applicant's building, whereas roots from the Applicant's paperbarks, which are only slightly more distant from the pipe blockage and to its north, might access the pipe beneath the northern driveway entrance to the building, which presumably lacks a deep footing (see Plate 13 of the Mackenzie report). The Court must have a degree of comfortable satisfaction, on the balance of probabilities, that the subject tree has caused damage: see Russell v Primrose [2009] NSWLEC 1298 at [2]. I cannot be satisfied to such a degree here that the roots found in the Applicant's pipe grew from the weeping fig (Tree 2). Therefore I cannot make orders on this element of the application.
11. It is worth noting here that even if I had found that Tree 2's roots were in the sewer, I would remain disinclined to make orders on that finding, once any acts or omissions of the parties are considered (s 12(h) of the Trees Act). While there was some correspondence about the trees prior to the 2021 pipe blockages, the Respondent was not presented with any relevant information, nor with evidence that would demonstrate which tree had roots in the pipe and whether tree removal was required. A mere request to remove a tree or trees is unlikely to be acted upon without such evidence. During the Applicant's submissions to the Court, Mr Chen pointed out that Mr Kurath's report was of no assistance because it did not address the issue of roots in the pipe. As Mr Chen explained, at the time of Mr Kurath's report (6 May 2021), neither the Respondent nor the Respondent's lawyer were aware of any issues with the sewer system.
12. After becoming aware of issues involving their trees, the Respondent applied to the City of Canada Bay Council (Council) to remove Tree 1 and Tree 2. Council informed the Respondent that their application for tree removal should be supported by a report from an AQF level 5 arborist. The Respondent took some time to obtain a report and, in the meantime, Council proceeded to determine the application without the report, refusing the removal of the weeping fig and informing the Respondent that the rubber tree is an exempt species that does not require Council's consent to remove. Mr Kurath's report does not identify any damage caused by the trees, nor does it recommend tree removal, so it is unlikely that Council's determination would have been any different had they received this report. The Respondent had not been supplied with information held by the Applicant that might have supported the tree removal application. It seems to me that there is little the Respondent could have done to prevent roots in the Applicant's sewer pipe. The Respondent did not knowingly continue a nuisance. Therefore, even if I was satisfied that Tree 2's roots were in the sewer pipe, I would not order payment of any compensation for invoices or quotes relating to that element of the application.

Roof gutters

1. The Applicant has not provided details of any damage caused to roof gutters and has not included any quantified claim for compensation for this. The Applicant stated that the weeping fig has been pruned away from the building, so is no longer impacting the gutters.

Tree 1

1. The rubber tree is not identified as a cause of damage in any of the reports, other than in the general unsubstantiated comments in Mr Palmer's report, referred to above at [15]. Although it is near the common boundary, it has not caused visible damage and I am not satisfied that it is likely to cause damage in the near future, being a period of 12 months or so as per the principle in Yang v Scerri [2007] NSWLEC 592; nor is it likely to cause injury. It follows that I cannot make orders to interfere with Tree 1.
2. The Respondent stated that they intend to remove Tree 1. They proposed consent orders for the removal of all three trees, but the Applicant did not agree to those orders. The Respondent does not require Council's consent to remove Tree 1 as it is an exempt species.

Tree 2

1. As explained earlier, I am not satisfied that the weeping fig caused damage to the Applicant's sewer pipe.
2. Mr Kurath noted that the tree's surface roots within the Applicant's property might cause a trip hazard, but this could be remedied by top-dressing with soil, removing the trip hazard.
3. Ms Mackenzie described the tree's growing environment. It is in a small planter that surrounds the base of the tree on all sides. The planter's eastern side is formed by a concrete wall on the common boundary, and is therefore property shared by the parties. Ms Mackenzie noted that the tree has displaced the surrounding planter, including the boundary wall, which has cracked. Both Ms Mackenzie and Mr Palmer acknowledged that the tree has not yet reached its full size. Ms Mackenzie suggested, and I accept, that as the tree grows it is likely to cause further damage in the near future to the boundary wall. Preventing such damage would require the wall to be rebuilt within the Applicant's property, rather than on the boundary. In the circumstances, such an arrangement is neither practical nor reasonable. It is appropriate that Tree 2 be removed to prevent further damage to the boundary wall.

Tree 3

1. The other rubber tree now included in these proceedings has not been shown to be a cause of damage. Ms Mackenzie suggested that it might cause damage within a few years, but this does not satisfy the jurisdictional test at s 10(2)(a), so the Court cannot make orders for this tree. As with Tree 1, the Respondent intends to remove the tree and included its removal in proposed consent orders. The Respondent does not require Council's consent to remove the tree, which has been identified by Ms Mackenzie as an exempt species.

Conclusion

1. I find no reason to order the compensation sought by the Applicant. The Court has jurisdiction to make orders only for Tree 2, and I find it appropriate that this tree be removed at the Respondent's expense. The Respondent also intends to remove Tree 1 and Tree 3, which are both exempt from requirements for Council's consent.

Orders

1. As a result of the foregoing, the Court orders that: 1. The application is granted to the extent of the following orders. 2. The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 2 (weeping fig) near the eastern boundary and to grind it stump to at least 200 mm below ground level or otherwise prevent its regrowth. These works are to be completed within 30 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 3. The Respondent is to give the Applicant 5 days' notice of the works in order (2). 4. The Applicant is to allow all access necessary for the works in order (2) during reasonable hours of the day. 5. The exhibits are returned, other than Exhibits A and B, which are retained.

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: 31 August 2022