Zignic v Waistell

CASES CITED: Sait v Mason [2007] NSWLEC 293 Black v Johnson No 2 [2007] NSWLEC 513

APPLICANT Mr M Seymour [barrister] Instructed by Lindsay Brian [solicitor] LEGAL REPRESENTATIVES:

RESPONDENT Ms A Pearman [barrister] Instructed by Audrey Egan [solicitor]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Anembo Crescent Kiama Heights against the owner of a tree growing at the rear of an adjoining property.

2 The applicant was represented by Mr Seymour and the respondent by Ms Pearman.

3 The applicant is seeking the installation of a concrete root barrier as she contends that roots from the respondent's tree have caused damage to her property and could continue to do so.

4 The applicant is also seeking compensation of a sum of $9,732.50 for rectification and preventative measures in relation to the alleged damage. These costs are summarised in a 'Scott Schedule' attached to the application.

5 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that a tree subject to the application has caused, is causing or could, in the near future, cause damage to the applicant's property or could cause injury to any person.

6 The tree in question is a mature Ficus macrophylla (Moreton Bay Fig). It is growing in close proximity to a smaller Ficus obliqua (Small-leaved Fig). Both are locally indigenous species. In uncontradicted evidence they may be in excess of 100 years old. They are located in a fenced off section at the southern end of the respondent's property. This area appears to be infrequently used.

7 Whilst there are two figs, it is agreed that the roots seen in the applicant's back yard are from the Moreton Bay Fig. The roots of the Small-leaved Fig are not in question.

8 The damage said to be caused by the tree's roots is cracking and lifting of a section of footpath; damage to a low, rendered brick garden edge; damage to a section of PVC downpipe; and damage to water pipes in a ground floor bathroom.

9 The dwelling on the property was approved in late 1990. The house was constructed by the original owner on the eastern portion of the block in order to take advantage of views to the ocean.

10 The applicant purchased the property in 1999 and it has been tenanted since then. From questioning, it appears that the applicant has only visited the property on several occasions as an agent manages it.

11 The applicant was clearly aware of the tree when she purchased the property. She stated that she recalls that large roots were obvious in the vicinity of the dividing fence but she has no recollection of large roots in the back yard.

12 In August 2009 a plumber was called in to investigate and repair a water leak in a ground floor bathroom at the north-eastern corner of the house. The applicant was informed by her agent that the plumber had said that the leaking pipe was caused by tree roots. There is no mention of roots in the invoice for the plumbing works.

13 The respondent was not notified of the problem with the water pipe at the time the problem occurred.

14 In September 2009, the applicant engaged N.R. Wallace - Building Consultant, to undertake an inspection of her property and prepare a report. The scope of the report was restricted to "damage to paving, drainage pipes and garden edges and the presence of roots from a tree situated on an adjoining property".

15 The consultant carried out a visual inspection and took photographs. No excavation was undertaken.

16 Mr Wallace made the following observations (quoted from the report): - Tree roots extend under the fence and continue around both sides of the dwelling - Tree roots have caused damage to drainage pipes against the side of the dwelling - Tree roots have caused damage to the concrete paving at the rear left hand side corner of the dwelling and to the cement rendered brick garden edges adjacent to the dwelling - Tree roots have caused damage to the plumbing water pipes leading to the ground floor bathroom. As a result the connections to the pipes to the shower recess have leaked and had to be replaced. It was necessary to remove some of the wall tiles to carry out this work. 17 Mr Wallace goes on to recommend checking the drainage mains and pipes with a camera, terminating the tree roots close to the fence, excavation of a 1.5 m deep trench parallel to the rear fence to be filled with concrete to form a root barrier, replacement of broken pipes, removal and replacement of concrete paving and garden edges, and replacement of wall tiles.

18 Nowhere in Mr Wallace's report is there any discussion of how the roots have caused the damage.

19 In October 2009, the respondent received a bundle of documents from the applicant's solicitor. This included the invoice for the repairs to the bathroom, the Wallace report and a claim for the remediation measures proposed by Mr Wallace. The applicant then contacted her insurance company.

20 At the on-site inspection, all of the areas photographed by Mr Wallace were observed. The bathroom tiles have since been replaced so there was no opportunity to inspect the area for roots.

21 There is no disagreement between the parties that the roots from the Ficus macrophylla are clearly visible in the applicant's backyard. It is clear that the growth of a root has cracked the pathway. There are roots growing against a low rendered brick garden edge and it is not an unreasonable assumption that some of the cracks may be due to root growth. These elements of the application accord with Mr Wallace's observations and photographs.

22 With respect to the downpipe, the PVC elbow that connects the downpipe to the storm water pipe is cracked. There is a root below the elbow that may have contributed to the damage. This damage was also photographed by Mr Wallace.

23 Therefore, with respect to the paving, garden edge and downpipe, I consider the nexus between the tree and these elements of the application to be proven on the balance of probability. Given the size and extent of the roots, future damage is also likely. Therefore as two of the tests under s 10(2) are satisfied the jurisdiction is enlivened and the Court may make an order with respect to those elements of the application.

24 With respect to the leaking pipe in the bathroom, the respondent, in her statement of evidence and under cross-examination, states that on receipt of the plumber's invoice from the applicant's solicitor, she contacted and spoke to the plumber (Darren) who had carried out the repairs.

25 The applicant writes in her statement of evidence that: "Darren said words to me to the effect that 'the damage to the bathroom occurred due to a galvanic reaction' and that this is 'the mixing of galvanised nails with copper pipes' and that the damage was 'not related to tree roots'".

26 Mr Seymour objected to this evidence as hearsay. However, I find that this evidence is no more hearsay than the advice the applicant received from the plumber via her agent. The written evidence is a signed statement and I find no reason to refuse it.

27 Mr Wallace's report provides no assistance in respect of this element of the claim. There is no description of the location of the roots or of how they caused the damage. The photograph in the report, taken after the plumbing work was completed, shows where the tiles were removed and the patched wall behind. There are no roots visible in this photograph.

28 As the nexus between the tree and this damage is not proven, this element of the application is dismissed as is the claim for compensation that flows from that.

29 Before determining an application, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (c) In uncontested evidence, the tree is said to be in excess of 100 years old and may have been planted by the owner of the original farmhouse that remains nearby but has since been sub-divided. Whilst no evidence of heritage listing was tendered, the two Fig trees on the respondent's property are said to have been used in the past as navigation aids as they are clearly visible from the nearby coastline. The evidence from the respondent clearly indicates that they are protected by the Kiama Municipal Council Tree Preservation Order. Therefore it is likely that these trees have local historical and social value. (d) The tree is a locally indigenous species and will contribute to the local ecosystem and to biodiversity. (e) The tree contributes to the scenic value of the land on which it is situated and to the locality. Fig trees such as these are part of the landscape character of this part of the coast. (f) The tree is clearly visible from surrounding residences and streets and from a nearby public coastal walkway. The tree has intrinsic value to public amenity. (h) Anything other than the tree/ acts or omissions by either party - these are discussed below.

30 Ms Pearman for the respondent contends that several issues are relevant with respect to s 12(h). The respondent was not notified of the alleged damage to the applicant's bathroom until letters of claim were received some 2 months after the problem with the bathroom. She also contends that the roots in the applicant's backyard are not easily seen from the majority of the respondent's property and therefore the respondent could not reasonably have knowledge that the roots may be a problem.

31 Ms Pearman cites Sait v Mason [2007] NSWLEC 293. She contends that the original owner of the applicant's property 'came to the nuisance' by electing to construct the house quite close to the tree. Ms Pearman also drew the Court's attention to the Tree Dispute Principle published in Black v Johnson No 2 [2007] NSWLEC 513. In effect, the tree was there first and therefore is a matter that the Court should take into account in determining the application and who should pay for any works.

32 Mr Seymour contends that the respondent has a responsibility to maintain the tree and that this damage should have been anticipated. He maintains that the respondent took no steps to prevent the damage. Mr Seymour also cited Black v Johnson and stated that because a tree is in existence before a structure is built is not a matter to be taken into account when determining if an order should be made to take actions to rectify or avoid damage caused by the tree.

33 After hearing the evidence and viewing the tree, I make some other comments relevant to s 12(h). With respect to the respondent, she was very mindful of the need to seek council approval for any works to be done to the tree. I agree that the roots in the applicant's backyard are not readily seen from the respondent's property.

34 With respect to the applicant and the relevance of the location of the house. The applicant purchased the house and was aware of the tree, she did not build the house and therefore the tree dispute principle in Black v Johnson is not entirely relevant. However, given the size of the roots above ground, it is clear that they would have been visible for a number of years as would the damage to the pathway. It appears that the applicant's agent did not draw this to the applicant's attention.

35 The applicant did apply to council for permission to install a root barrier in accordance with Mr Wallace's recommendations. Council has approved these works subject to conditions.

36 Section 9 of the Act enables a degree of discretion in the making of orders. In this matter, the orders sought by the applicant is the installation of a root barrier to prevent future damage and the making good of damaged property. I consider the installation of a root barrier to be appropriate in this matter. However, this is to be installed as far away from the tree as possible in order to limit the damage to the tree. If Mr Wallace's recommendations were implemented the health and stability of the tree would be unacceptably compromised.

37 The compensation claim, as itemised in the Scott Schedule, claims costs for damage not proven to be caused by the tree, specifically item 4.2 and 4.7. No compensation will be awarded for these items.

38 Whilst I accept the argument that the leaking water pipe had to be fixed as a matter of urgency, the respondent was given no notice of the problem for a period of two months. The respondent was therefore denied any chance of taking action. Similarly, the damage to the path must have been obvious for some years but the respondent was not notified. As a result of this, the amount payable by the respondent will be discounted by 20%.

39 For the forgoing reasons, the Orders of the Court are: 1. The application for the installation of a root barrier is upheld. 2. The applicant is to obtain three quotes for the installation of an impervious root barrier to be installed in accordance with the approval and guidelines attached to Kiama Municipal Council Tree Preservation Order Work Authority permit Number 07385 (attached to the application form). [Note- the permission to prune is not part of these Court orders.] 3. The root barrier must be at least 7 m from the dividing fence. Any spoil is to be placed on the lawn to the west of the trench (away from the tree). 4. An AQF level 3 arborist is to be on site to cleanly cut the roots during the trenching process and to ensure that there is no disturbance to the root zone between the trench and the tree. 5. The applicant is to obtain 3 quotes for the replacement of the damaged section of concrete path, the repair of the low brick garden wall from the north-eastern corner of the dwelling to the damaged downpipe elbow, and for the repair and replacement of the damaged elbow of the downpipe. 6. These quotes are to be obtained within 28 days of the date of these orders and copies provided to the respondent. 7. On receipt of the quotes, the respondent has 7 days to advise the applicant of the choice of contractor(s). 8. The applicant is to engage and pay for the nominated contractor(s) and the works are to be completed within 90 days of the date of these orders. 9. The respondent is to pay the applicant 80% of the cost of the completed works within 21 days of the receipt of a tax invoice for the completed works.

Judy Fakes Commissioner of the Court

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