Bruggemann v Coull Summary

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Bruggemann v Coull [2008] NSWLEC 1124

PARTIES:
APPLICANT
Joan Bruggemann

RESPONDENT
Paul and Roslyn Coull

FILE NUMBER(S):
20041 of 2008

CATCHWORDS:
Neighbour Application; Trees (Neighbours) :- Removal of trees, compensation for damage

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CORAM:
Thyer ACWatts AC

DATES OF HEARING:
20/03/2008

EX TEMPORE DATE:
20 March 2008

LEGAL REPRESENTATIVES

APPLICANT
Joan Bruggemann, litigant in person

RESPONDENT
Paul and Roslyn Coull, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Thyer AC with Watts AC
20 March 2008
20041 of 2008
Joan Bruggemann v Paul and Roslyn Coull

JUDGMENT
The decision was given at the hearing on 20 March 2008.
This written judgment reflects the findings and the background documentation provided as part of the proceedings.

ACTING COMMISSIONERS: Mrs Bruggemann says she was the first in her area of Heathcote to have PVC sewer pipes installed. She later had a swimming pool constructed beside that pipe, in the hollow below the rock escarpment, in her backyard. Extensive excavation was required in the solid rock, and the concrete pool was installed within 300 mm of the sewer pipe. Twenty-five years later, the sewer became blocked by a mass of fine tree roots that we were told had entered at a faulty junction in the pipe beside the pool. Mrs Bruggemann has had disagreements for some years, with her neighbours the Coulls about a retaining wall and fence beside the pool. It is now her opinion that the Bottlebrush tree growing on the Coull’s property has caused the sewer blockage and she is concerned that the roots of a gum tree on their property may damage her pool if it were to fall.

Mrs Bruggemann seeks removal of the Bottlebrush tree and the Gum tree and compensation of $2,174.96 for the cost of sewer repairs, reports and application to the Court.

When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met before making an order regarding the tree.
These tests are:
Has the tree caused damage to the applicant's property?
Is the tree now causing damage to the applicant's property?
Is the tree likely in the near future to cause damage to the applicant's property?
Is the tree likely to cause injury to any person?

Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:
Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?
The issues
The issues in this case are:
Is there sufficient evidence that the root mass within the PVC sewer pipe is from the Bottlebrush tree in No 8 Corinth Road, owned by the Coulls?
Is the Gum tree in No 8 Corinth Road likely to fall in the near future with its roots damaging the pool on No 6 Corinth Road, the applicant’s property?
The findings
Bottlebrush tree: We believe that there is insufficient evidence that the roots in the pipe are from the Bottlebrush tree in the Coull’s property at No 8 Corinth Road, Heathcote.

However, we do accept that the root analysis shows that the roots in the pipe are from a Callistemon sp.

If the roots gained entry at the inspection opening as shown on the attached diagram and as stated by Ms Bruggemann, we would have expected to see the cut root still in the ground. As there is no evidence of such a root in the ground nearby, we cannot be certain that the root mass in the pipe came from the adjacent Bottlebrush tree.

We accept the evidence that camera observation of the nearby pipes to the inspection opening revealed that there are no problems with the pipes. We cannot be sure that the roots did not enter from further away than the area observed by camera.

We note in the Coull’s aborists report that he dug a trench beside the tree and only found one tree root being about 20mm in diameter growing into No 6 Corinth Road. It is our opinion that this tree root would not be large enough to cause the problem of the blockage and the root mass found in the pipe.

Regarding possible subsidence of the bush rock wall, we accept that the wall has cracked and may have moved slightly, but we don’t accept that there has been sufficient movement to damage the sewer pipe.

In summary, although we do not know where the tree roots have come from, the evidence does not prove, on the balance of probability that they came from the Callistemon growing on the Coull’s property.

Gum tree: No evidence has been provided that the tree is likely to cause damage in the near future.

We are told that a council officer looked at the tree and advised Mr Coull that permission would not be given to remove it.

We are aware that Mr Jackson, the Coull’s arborist was in possession of the applicant’s report when he inspected the site. We are satisfied that he would have brought the tree to their attention if he considered it a danger.

With regard to roots of this tree damaging the pool, the applicant has advised that the pool was excavated into rock. We do not find it likely that tree roots would grow between the rock and the concrete of the pool sufficiently to cause damage in the near future.

Conclusion

As it has not been proven that the Callistemon tree caused the damage to the sewer pipe, or that the gum tree is likely to cause damage in the near future, we dismiss this case.

Orders
The Order of the Court is that the application is dismissed.

Peter Thyer

Acting Commissioner of the Court

S J Watts

Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at

Details

AGLC: Bruggemann v Coull [2008] NSWLEC 1124
Case: [2008] NSWLEC 1124
Decision Date: 20 March 2008

CaseChat Overview and Summary

The matter of Bruggemann v Coull was heard by the New South Wales Land and Environment Court. The applicant, Joan Bruggemann, sought an order for the removal of certain trees on the adjacent property of the respondents, Paul and Roslyn Coull, and compensation for damage caused by the trees. The dispute arose due to concerns that a Bottlebrush tree and a Gum tree on the Coull's property had caused damage to Bruggemann's sewer pipe and posed a risk to her swimming pool.

The primary legal issues the court needed to decide were whether the Bottlebrush tree on the Coull's property had caused damage to Bruggemann's sewer pipe, and if the Gum tree was likely to fall and damage her pool in the near future. The court examined the evidence provided by both parties, including expert reports and observations, to determine if the roots found in the sewer pipe originated from the Bottlebrush tree, and whether the Gum tree posed a significant risk of falling and damaging the pool.

The court found that there was insufficient evidence to conclude that the roots in the sewer pipe came from the Bottlebrush tree on the Coull's property. Although the root analysis indicated that the roots were from a Callistemon species, there was no conclusive proof that they originated from the specific tree in question. Furthermore, the court found no evidence that the Gum tree was likely to fall and cause damage to the pool in the near future. The court dismissed the application, ruling that the applicant had not proven that the trees on the Coull's property had caused damage or posed a significant risk to her property.

The court's decision was based on the lack of sufficient evidence to establish a causal link between the trees on the Coull's property and the damage to Bruggemann's sewer pipe and swimming pool. The court concluded that the application should be dismissed, and the formal orders reflecting this decision are available from the Court’s registry upon payment of a fee.

Orders