Baker v Grabovac

[2010] NSWLEC 1289

Land and Environment Court

of New South Wales

CITATION:

Baker v Grabovac [2010] NSWLEC 1289

PARTIES:

APPLICANT
G and E Baker

RESPONDENT
D Grabovac

FILE NUMBER(S):

20666 of 2010

CORAM:

Fakes C - Hewett AC

KEY ISSUES:

TREES (NEIGHBOURS) :- compensation; damage to sewer

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

21/10/10

 
DATE OF JUDGMENT: 

21 October 2010

EX TEMPORE JUDGMENT DATE:

21 October 2010

LEGAL REPRESENTATIVES:

APPLICANTS
G and E Baker [litigants in person]

RESPONDENT
D Grabovac [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C
Hewett AC

21 October 2010

20666 of 2010 Baker v Grabovac

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

1 COMMISSIONERS

: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Casula against the owner of tree on an adjoining property.

2 The applicants are seeking compensation of a total of $12,225. This sum includes plumbing costs of $11,470 associated with the removal and replacement of blocked sewer pipes and associated works to an ensuite bathroom. It also includes a sum of $755 for legal fees, the application filing fee and other costs associated with the cost of making the application.

3 Before proceeding, it is necessary to state that Commissioners do not have the delegation to award costs associated with the making of an application.

4 The tree is question was a Camphor Laurel growing adjacent to the boundary fence between the two properties and approximately 1.5 m from the applicants’ ensuite bathroom. Photographic evidence tendered by the applicants shows the tree reduced to a stump with the remaining part on the ground. The tree was said by the applicants to be some 5-6 years old and was there when the respondent purchased his property. The tree removal appears to have taken place after the 11^th June 2010.

5 Between the directions hearing and the on-site hearing, the respondent had the stump removed to prevent any further growth. Section 4(4) of the Act states that a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on the land for the purposes of the application.

6 The basis of this application is that in May 2010 a toilet in the applicants’ ensuite bathroom became blocked. A plumber that the applicants had used previously inspected the problem on the afternoon of 24 May. Based on what he saw he advised that the blockage was likely to be caused by tree roots.

7 The plumber returned the next day (a Tuesday) and took a number of actions to rectify the problem. These actions included water jetting, inspection with CCTV and excavation of certain sections of plumbing. Roots of the Camphor Laurel were found in the PVC pipes and enough of the pipe was unblocked so that the toilet could function. The plumber advised the applicants that there were problems elsewhere in the pipe that would need attention at a later stage. The cost of the initial works was $2000.

8 In response to the blockage and the emergency plumbing works, the applicants approached the tenants of the respondent’s property (on the following Saturday) in order to ascertain the owner’s contact details. The tenants gave them the name of the real estate agent.

9 The agent was contacted by phone and asked the applicants to put their claims in writing. This was sent by fax on 31 May.

10 In that fax, the agent is advised of the works that had been carried out on 25 May and notice was given that further works to repair the damaged pipes would be completed in a few weeks. The applicants sought reimbursement from the respondent of 50% of the cost of the works completed on 25 May. That is, the amount sought from the respondent at that stage was $1000.

11 The applicants contend they had no response from the respondent. The respondent stated that he made two phone calls. The applicants said that no message was left on either occasion.

12 Some relatively short time later, the toilet became blocked again. The plumber who carried out the initial work returned on 10 June and undertook some further work. It appears that as a result of this work, the plumber became aware of a much greater problem and prepared a quote to remove roots from the pipes and fittings in the bathroom. It appears from the tax invoices and quotes that the initial work on 10 June cost $2600 and the quote for the additional work was estimated at $8,800.

13 The additional works to the interior of the bathroom were commenced on 10 June. These additional works included digging up the floor of the bathroom, removing the toilet bowl and floor waste and then reinstating the bathroom.

14 The applicants insist that they were very mindful of keeping costs to a minimum. They were very unhappy that the extent of the damage, as seen by one of the applicants on CCTV, was such that the roots had penetrated the fixtures and pipes to such an extent that they were incapable of being cleared in a more conventional and less destructive manner.

15 On 15 June, another fax was forwarded to the respondent’s agent advising them of the subsequent works. We note that at the time this fax was sent the works to the bathroom were stated as being close to completion and the estimated final cost of the internal work was $7,900. This was in addition to the $2600 for the initial works on 10 June.

16 The respondent was asked to reimburse the applicants 50% of both these amounts.

17 In support of their application, the applicants included both the plumber’s quotes and the tax invoices from 24/25 May, 10 June and 18 June.

18 These documents are very confusing. There are inconsistencies in the method and the notations used by the plumber to indicate if the works were paid for. An additional complication is that payments were made in instalments. As no other evidence was tendered, such as bank/credit card statements, we can only work on the evidence before us.

19 We are satisfied that $2000 was paid for the work on 25 May and $1000 was paid as a deposit for the internal works on 10 June and $3500 was paid on 24 June (on the tax invoice dated 18 June). We are unclear about the $2600 on 10 June as there is no notation on the invoice. We do note a sum of $2400 noted as a ‘balance’ paid on a tax invoice dated 18 June but we are very unclear as to what it relates to as it could relate to the overall ’total’ of the invoice stated as $3500 which is noted as ‘paid in full’. Given the confusion we consider the benefit of the doubt should go to the respondent.

20 Therefore we consider the sum of $6500 to be the basis of whatever compensation may be payable by the respondent.

21 The respondent contends that he should not pay any compensation as he considers the timing of the notice was after the works were carried out and therefore the applicants, in his words, “were spending his money without his consent”. He considers that he should have been notified immediately and not one week later. He also contends that he was given no opportunity to engage his own plumber to investigate the problem and if necessary, to do the work. He considers that the methods used by the plumber, and therefore the costs, were above and beyond the normal jetting he considers is generally sufficient to clear blocked pipes.

22 The respondent filed a response to the application with the Court but did not comply with the directions given at the preliminary hearing to serve the same documents on the applicants. This response included a reference to a judgment of this Court. As the applicants considered they did not have sufficient time to address the issues in the respondent’s material, it was not allowed in evidence.

23 We note that the Court has considered many cases involving tree roots in sewers and the payment of compensation and that each case is unique with its own set of circumstances.

24 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person.

25 In this matter we are satisfied that the tree has caused the damage to the applicants’ property. The photographic evidence is clear. At the on-site hearing we inspected roots retrieved from the blocked pipes. Given the camphor smell of the roots, the respondent did not contest the evidence that the roots originated from the tree that grew on his property. There is no other Camphor Laurel in either the applicants’ or respondent’s property.

26 As one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order. However, in making an order, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) the tree was wholly located on the respondent’s property;
(h)(i) Anything other than the tree/ actions of the parties.
In this matter the applicants admit that the plumber advised them that the joins between the PVC pipes had not been appropriately sealed when they were installed. It is on this basis that the applicants only claimed 50% of the costs of the works. In reply, the respondent contends that he was denied the opportunity to take action with respect to the plumbing and that he did remove the tree and the stump.

27 In considering the facts before us we find that the respondent’s tree did cause the damage to the applicants’ sewer however we note the contributing factor of the inadequately sealed joins. As stated previously we consider we only have proof, on the evidence before us, that the applicants paid $6500. We consider 50% of this amount should be the starting point of our consideration of how much the respondent should contribute.

28 We are satisfied that a blocked toilet in a household with three young children requires urgent attention and it was appropriate for the applicants to have the matter attended to as soon as possible.

29 Even though the respondent claims the amount paid by the applicants for those emergency works was excessive, we can only proceed on the evidence before us as to what was undertaken by the plumber.

30 We accept the applicants’ difficulties in notifying the owner given the fact that the respondent’s property is tenanted and the time taken to notify the agent. In our opinion this could only have been foreshortened by a few days.

31 We also consider that the respondent was on notice of future works and that he did have an opportunity to take action.

32 However, given the very confusing nature of the quotes, tax invoices and method of partial payment we have concerns over the veracity of the information in support of the plumbing works and the costs. There is no clear itemisation of the works in terms of time, labour and materials.

33 Therefore we consider that a further discount in favour of the respondent is in order and we have determined that the respondent should be responsible for 40% of the costs we consider have been proven to be paid by the applicants. In the circumstances of this matter we consider this to be reasonable.

34 As a result of the foregoing, the Orders of the Court are:

1. The application is upheld in part.
2. The respondent is to pay the applicants the sum of $2800.00 within 60 days of the date of these orders.

_____________________________

J Fakes
Commissioner of the Court

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