Cheng v Robertson

[2024] NSWLEC 1226

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cheng v Robertson [2024] NSWLEC 1226

Hearing dates:

15 April 2024

Date of orders:

02 May 2024

Decision date:

02 May 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the tree damaged a stormwater pipe – whether the tree is likely to damage a sewer pipe – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Joaquim v Adamson [2009] NSWLEC 1312

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Georges River Development Control Plan 2021

Category:

Principal judgment

Parties:

Lissa Cheng (First Applicant)
John Bridge (Second Applicant)
Scott Robertson (First Respondent)
Bo Robertson (Second Respondent)

Representation:

Counsel:
L Cheng (Self-represented) (First Applicant)
J Bridge (Self-represented) (Second Applicant)
S Robertson (Self-represented) (First Respondent)
B Robertson (Self-represented) (Second Respondent)

File Number(s):

2024/41828

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Bo Robertson and Scott Robertson (together, referred to in this decision as the respondents or the Robertsons) have a mandarin tree (the tree) in the back garden of their Carlton property. Their neighbours to the northwest, Lissa Cheng and John Bridge (together, the applicants), have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders to remedy and prevent damage to their property. In their original application filed on 2 February 2024 (Exhibit A), the applicants sought orders for: removal of the tree; compensation for plumbing works and related costs for repairing their stormwater pipe during 2023; costs of future investigative work to determine if tree roots have damaged, or are likely to damage, their sewer pipe, and the cost of any remediation work arising; and costs of bringing this matter to the Court, including the costs of reports and the Court’s application fee. On 6 March 2024, the applicants filed amended orders (Exhibit B), in which they no longer sought an order for costs associated with making their application, but added an order seeking reinforcement or rebuild of a retaining wall on the respondents’ property to prevent the collapse of paving on the applicants’ property.

2. As is usual in Class 2 tree matters, the hearing took place onsite. The parties, all self-represented, showed the Court the relevant features at the site, including (but not limited to): the mandarin tree, the boundary fence, the retaining wall on the respondents’ land near the common boundary, the areas on the applicants’ property where pipe repair works were carried out during 2023, the approximate alignment of the applicants’ stormwater pipe and sewer pipe, the lie of the land, and young palm tree shoots on the respondents’ land near the common boundary. Once we had observed everything, we sat at a table on the applicants’ property where the Court heard oral evidence from several witnesses, followed by submissions from the parties. I reserved my decision at the end of the hearing.

3. Prior to the hearing, the applicants filed the following evidence:

• an affidavit sworn 18 March 2024 by Laurence Melville, a semi-retired civil engineer (Exhibit F);

• a tree management report (17 November 2023) by Stephen Warner, a consulting arborist (Exhibit G);

• copies of invoices (18 and 25 August 2023) from JJJ Plumbing and Gas for 2023 repairs to their stormwater pipe and a quote (1 February 2024) from the same (in Exhibit H);

• copies of invoices (25 August and 5 September 2023) from Georges River Council for permit fees for having a skip bin on public land, and an invoice (25 August 2023) from Freddy’s Skip Bins for the skip bin and disposal of waste (in Exhibit H);

• copies of invoices (in Exhibit H) for costs associated with making their application, although I note here that the applicants no longer seek a costs order; and

• an affidavit sworn 15 March 2024 by Ms Cheng (Exhibit E), and two affidavits sworn 13 and 19 March 2024 by Mr Bridge (Exhibits C and D respectively).

4. Prior to the hearing, the respondents filed the following evidence:

• a report (5 April 2024) by Craig Cook, a plumber (Exhibit 3);

• a report (29 February 2024) by Stuart Rennie, a consulting arborist (Exhibit 4);

• four affidavits sworn by Ms Robertson and two affidavits sworn by Mr Robertson (all sworn 8 April 2024, and together Exhibit 1); and

• four bundles of photographs and further commentary in support of their sworn affidavits (Exhibit 2).

5. Ms Cheng raised an objection to the Court accepting elements of the Robertsons’ evidence that she says she did not receive within the timeframe for filing evidence ordered by Registrar Froh at the Directions Hearing of 5 March 2024: the respondents’ evidence was to be filed by 4:30 pm on 8 April 2024. Ms Robertson explained that she had used an incorrect email address for the respondents when sending the respondents’ evidence during the day of 8 April 2024. Ms Cheng confirmed that she received a link to the documents by email later that day, during the evening, after Ms Robertson corrected the email address. I asked Ms Cheng if she was deprived of any opportunity to digest and respond to the information within those documents. Ms Cheng conceded that she suffered no disadvantage, but insisted the Court’s orders must be followed. I take her point, but I think it is reasonable to accept the respondents’ evidence in these circumstances. I made this finding during the hearing, communicated this to Ms Cheng, and accepted the respondents’ evidence that was filed late.

6. At the hearing were Anthony Jea Jea, plumber of JJJ Plumbing and Gas, and Laurence Melville, engineer, both for the applicants. The applicants’ arborist, Stephen Warner, had been requested to attend but was unavailable. The respondents rang their arborist, Mr Rennie, at the hearing’s commencement and Mr Rennie was soon present. The Robertsons also requested the attendance of a nearby neighbour, Michael Mallos, for cross-examination. The Court had no evidence from Mr Mallos. When the applicants arranged a meeting with the respondents in September 2023, the applicants invited Mr Mallos as ‘a witness’. The Robertsons submitted that they felt ‘ambushed’ into an ‘entrapment’ and left the meeting (affidavit of Scott Robertson, 8 April 2024, Exhibit 1(E)). Ms Robertson explained to me that she wanted to question Mr Mallos as to the arrangements for his attendance at that meeting. I could see no relevance of this to the issues requiring determination in these proceedings, so I did not allow Ms Robertson’s cross-examination of Mr Mallos, despite Mr Mallos’ very eager offer to explain things. In the interest of efficiency, and aware of the range of issues raised in affidavits, I informed the parties that I would contain the evidence and submissions during the hearing to matters that would be relevant to my decision.

Framework for this decision

7. The key jurisdictional tests in these proceedings are found 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.

8. Put simply, I can only make orders if, firstly, I find that the applicants made a reasonable effort to resolve the matter with the respondents and, secondly, that the respondents’ mandarin tree damaged the applicants’ stormwater pipe or is likely in the near future to damage their sewer pipe or other property on their land. As per Yang v Scerri [2007] NSWLEC 592 (at [14]), I regard a period of 12 months or so reasonably represents ‘the near future’. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

Reasonable effort to reach agreement

9. JJJ Plumbing and Gas attended the applicants’ property several times during August 2023 to investigate issues with their stormwater and then to replace a section of their stormwater pipe. Ms Cheng and Mr Bridge determined that their stormwater pipes had been damaged by roots of the Robertsons’ mandarin tree, so thought that the Robertsons should contribute to the repair costs. They attempted to arrange meetings to discuss and resolve this. The descriptions of these meetings, and the reasons given for the failure of any resolution, vary widely between the parties. Ms Cheng and Mr Bridge feel they made significant and reasonable efforts to discuss the issues. The Robertsons feel they were ambushed, that they were not provided any opportunity to properly view the damage or to have it assessed, and that they were never shown any evidence that roots from their tree had damaged the pipe. They argued, therefore, that the applicants’ efforts were not reasonable.

10. Ms Chang’s and Mr Bridge’s application for mediation with the Robertsons through the Community Justice Centres (CJC) was not accepted by the Robertsons. The Robertsons submitted that they did not know the intended subject of mediation. However, correspondence in evidence shows that Ms Cheng and Mr Bridge informed the Robertsons of root damage to their pipe, and that they would like to provide evidence of the damage. The applicants also informed the respondents that they would apply for mediation via the CJC.

11. From the various explanations of this issue in the affidavits, it is clear that communication between the neighbouring parties was fraught with difficulty. The police were called once. It seems to me that the nature of their communication was such that there was almost no likelihood that further discussions would result in a resolution. In such circumstances, and as Preston CJ referred to in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (at [195]), the requirement for reasonable effort might sensibly be satisfied. I find that Ms Cheng and Mr Bridge made a reasonable effort to reach agreement with the Robertsons.

Did the mandarin tree damage the stormwater pipe?

12. On this element of the application, I must not make any orders unless I am satisfied that the mandarin tree damaged the stormwater pipe. On a relatively straightforward analysis of the evidence, I am not satisfied of this.

13. The mandarin tree (Citrus reticulata) is less than 5 metres tall and grows in the Robertsons’ back garden adjacent to the paling fence along the rear section of the common boundary. A short distance to the southwest of the tree, the paling fence comes to an end where the applicants’ and respondents’ shared driveway runs between their dwellings to the street frontage. The applicants’ stormwater and sewer pipes pass within a few metres of the mandarin tree. Their stormwater pipe was repaired in August 2023 after it became blocked. The area was then repaved.

14. The applicants rely on some photographs of tree roots and on the oral evidence of Mr Jea Jea.

15. Mr Jea Jea had carried out the 2023 repair works to the applicants’ stormwater pipe. He pointed out the areas where damaged earthenware pipe was removed. The applicants submitted that they had no issues with the stormwater pipe in the 16 years prior to August 2023, when it suddenly became blocked. In their application, they wrote that a plumber was called. After using a camera to explore the pipe at the area of damage, the plumber’s camera “…showed the presence of mandarin roots”. Copies of the plumber’s in-pipe photographs included in the original application have the caption: “Exploratory camera image identifying mandarin roots.” I cannot determine from the photographs that the roots are from a mandarin tree and nobody else has identified the roots.

16. Mr Jea Jea explained during the hearing that he did not, and could not, positively identify the roots, but he assumed the roots he saw belonged to the mandarin tree, as it was the only tree nearby, and he thought their appearance was consistent with such a tree.

17. The Robertsons pointed out young palm tree shoots on their property. They explained that these shoots continuously appear and that they result from a network of roots remaining from several large palm trees removed many years ago. The applicants argued that they have lived here for 16 years, and they know the previous owner of their property, who removed no palms. Therefore, they asserted in their final submissions, there have been no palm trees on their property for more than 20 years and palm roots would not survive that long after tree removal. (I note that in their application they wrote that Mr Bridge removed a palm tree from the middle of their yard approximately 13 years ago.) Mr Rennie, the arborist engaged by the Robertsons, gave evidence that even though specific roots in some of the applicants’ photographs may be from the mandarin tree, he observed, in photographs of soil beneath the common boundary fence, roots that were clearly palm roots. He thought the palm shoots on the Robertsons’ property appeared to be cocos palms. I observed the palm shoots and the photographs to which he referred and, relying on my own arboricultural expertise, I am persuaded by Mr Rennie’s evidence. Palm roots are, and were, present in the vicinity of the pipe damage.

18. Mr Warner, the arborist engaged by Ms Cheng and Mr Bridge, included in his report a photograph of roots captioned: “Tree roots which have previously been removed from subject drain during plumbing works.” They may be mandarin roots, or not, but there is no evidence that those roots were taken from within the pipe, rather than from the surrounding soil during excavation works.

19. If the applicants’ stormwater pipe was damaged by tree roots, the origin of those roots cannot be determined. But that is not the most adverse finding on this element of the application.

20. Following the stormwater repair works, JJJ Plumbing and Gas submitted an invoice on 18 August 2023 (in Exhibit H). I copy here the first item on the invoice (with my emphasis in bold):

“Friday 12/8/23 camera inspection to locate problem. Bricks and rubbish found on left hand side of property in stormwater pipe in ground.”

21. The second item on the invoice is (with my emphasis in bold):

“Tuesday 15/8/23 Excavate rear of driveway and locate broken stormwater pipe. Repair approximately 3 m and backfill and concrete area.”

22. Subsequent items on this invoice refer to repair works then carried out, equipment hired and materials purchased and the cost of labour, until a final note states:

“Due to the mandarin tree next door the stormwater system has failed and needs upgrading.”

23. Despite the final note, the invoice only identified bricks and rubbish in the pipe, which was already broken.

24. Mr Jea Jea was questioned on the pipe and what he found. As he described, the pipe was unusual and very old. Rather than the usual earthenware pipes found in many properties built before the adoption of PVC pipes, the applicants’ stormwater pipe was drilled with holes at the time of manufacture, to allow water to soak into the surrounding soil. This is ‘not ideal’, as he explained, as the holes allow soil and roots to infiltrate the pipe, “as has occurred here”. As per his description on the invoice, and as contemporaneous photographs show, the pipe was filled with soil. While roots can also be seen within the pipe, there is nothing to demonstrate that they, firstly, broke or damaged the pipe and, secondly, obstructed the pipe.

25. The Robertsons have lived here for many years, in particular Mr Robertson, whose father once owned their property. Mr Robertson, a retired plumber, submitted that he was present when the subject stormwater pipe was installed over 30 years ago by the then owners of the applicants’ property. He recalls his then neighbours installed old, pre-used, salt-glazed pipes, with holes as described by Mr Jea Jea, without mortar applied at the joints. Mr Robertson was surprised the pipes lasted as long as they did. Mr Robertson’s account is entirely consistent with Mr Jea Jea’s description of the pipe.

26. It seems the applicants’ stormwater pipe became blocked as a result of its own nature, allowing soil and roots to infiltrate the pipe. At least one photograph suggests it was mostly soil, not roots, that then blocked the pipe.

27. The Robertsons submitted that they have demonstrated that their tree’s roots did not damage the pipe. I cannot be sure that the mandarin’s roots played no part in the damage, however, on the limited evidence before me, I am not satisfied that the mandarin tree’s roots caused damage to the pipe. On this element of the application, I cannot make orders.

Is the mandarin tree likely to damage the applicants’ property?

28. Ms Cheng and Mr Bridge allege that roots from the mandarin tree are likely to damage their nearby sewer pipe. Had the evidence of damage to their stormwater pipe been overwhelming, I may need to give this element of their application greater consideration. However, there is nothing in evidence to satisfy me that such damage is likely in the near future. The applicants’ stormwater pipe is now entirely of PVC, whereas sections of their sewer are of old earthenware pipe. Not only have the applicants carried out no investigation to show the condition of the sewer pipe, or the proximity of tree roots, they seek an order for the respondents to pay for some investigation. There are no grounds for such an order.

29. The applicants rely on Mr Warner’s report (Exhibit G), where at page 10 he wrote:

“There is always an inherent risk associated to infrastructure by trees as they usually grow where conditions are favourable and will become invasive to property when seeking out a source of moisture and sunlight. The trees retention value using the (S.T.A.R.S) (Appendix C) is of low significance due to the potential damage to building infrastructure. This tree is not considered significant or worthy of any special measures to ensure its preservation. It is of my belief that this tree is to be removed (S.U.L.E)(4f).”

30. That is the extent of Mr Warner’s observations and discussion specific to the likelihood of future pipe damage.

31. I am not satisfied that the mandarin tree is likely to damage the applicants’ sewer pipe in the near future.

32. Now that the applicants’ stormwater pipe is entirely PVC, it is unlikely that roots will damage it.

33. The other element of Ms Cheng’s and Mr Bridge’s application concerns paving on their land near the Robertsons’ mandarin tree. Further to the rear of the boundary, a low brick retaining wall runs along or close to the common boundary for some 16 metres from the rear boundary, stopping a little short of the mandarin tree. The paling fence atop the retaining wall continues further along the boundary, past the mandarin tree where there is no retaining structure despite the difference in ground level between the two properties. Mr Melville described the retaining wall as being in good condition, suitable for its purpose. Ms Cheng and Mr Bridge submitted that near the tree, where there is no retaining wall, soil is washing away and the edge of their paving is slumping.

34. It appears the need for a retaining wall arose when the rear of the applicants’ land was developed some years ago with an outbuilding and a driveway constructed above natural grade. If that is so, the responsibility for retaining the newly raised land surely lay with the owners of the land. Even if I am wrong on that, the condition of the applicants’ paving has nothing to do with the mandarin tree. If anything, as the Robertsons submitted, the tree is assisting with soil stability there. Submissions were made about the impact that the tree’s removal would have on soil stability and the paving, but as I am not making an order for tree removal, that is not something I must consider here.

30. Because I am not satisfied that the Robertsons’ mandarin tree is likely to damage any of Ms Cheng’s and Mr Bridge’s property in the near future, I cannot make any orders on this element of the application.

31. It follows that no orders can be made in these proceedings, so there is no need for me to consider the matters at s 12 of the Trees Act.

Other matters

37. The parties referred to a ‘sinkhole’ that appeared on the applicants’ property in their affidavits and submissions. If the sinkhole resulted from the stormwater pipe blockage, it follows from my earlier findings that the evidence does not demonstrate any causation by the mandarin tree. If not caused by the blockage, there is no evidence that the tree’s roots caused the sinkhole via other means.

38. Affidavits and submissions referred to whether or not one of the applicants had tried to poison the mandarin tree. If (a) the tree had caused or is likely to cause damage to the applicant’s property, and (b) poisoning of the tree might have led to the need to remove the tree, then this would be something to consider when making any orders, especially when determining who would pay for removing the tree: see Joaquim v Adamson [2009] NSWLEC 1312. This is not the case in these proceedings, so I have left that issue alone.

39. The parties referred to the applicants’ intention to prune the mandarin tree’s branches overhanging their property. This is not relevant to this decision, as it does not involve damage to the applicants’ property, nor any other jurisdictional matter arising from the application, but was referred to in affidavits and submissions. As it seemed likely to be a matter of ongoing dispute, I offered my view of the situation considering common law and the Georges River Development Control Plan 2021: if the mandarin tree is a domestic tree grown for the purpose of fruit production, it is exempt from requiring Georges River Council’s consent for pruning or removing it, so overhanging branches could be pruned by the applicants as per their common law right of abatement. Nevertheless, this is best done in a cooperative, non-confrontational manner where possible.

Orders

40. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibits A and B.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 02 May 2024