Difford v Davidson
[2018] NSWLEC 1612
•20 November 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Difford v Davidson [2018] NSWLEC 1612 Hearing dates: 20 November 2018 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – terracotta pipes – reasonable effort to reach agreement Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Thelma Difford (Applicant)
Jason Davidson (Respondent)Representation: Thelma Difford, litigant in person (Applicant)
Jason Davidson, litigant in person (Respondent)
File Number(s): 2018/243585 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Several years ago Mr Davidson (‘the applicant’) planted a row of trees along the side boundary of his Abermain property to provide privacy between neighbouring dwellings.
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Since then his neighbour Mrs Difford (‘the respondent’) has engaged a plumber on several occasions to unblock her sewer pipe, which runs along close to this common boundary.
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Mrs Difford has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the trees to be removed or for a root barrier to be installed to prevent roots growing onto her property. She also seeks compensation for plumbers’ costs of $900.
The trees and property
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I viewed the situation at the onsite hearing. Ten lilly pillies and several other trees grow in a row on Mr Davidson’s property close to the common boundary. They are approximately three metres tall.
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On her property, Mrs Difford has uncovered one root growing from a lilly pilly towards her sewer pipe. She provided invoices showing a plumber has removed tree roots from her sewer pipe on several occasions.
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Mrs Difford submits that Water Corporation guidelines recommend lilly pillies be planted no closer than 10-12 metres from water pipes.
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Council provided written submissions explaining that, due to their height and proximity to buildings, a permit would not be required for removing these trees. Council’s vegetation officer expressed a view that “… it is reasonably foreseeable that roots may impact pipe work adjacent.”
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Mrs Difford explained that she should not be expected to continually bear the costs of repairing her sewer pipe.
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Mr Davidson submitted that roots were unlikely to cause initial damage to pipes, but may grow into cracks in joints of old terracotta pipes. He says a palm tree has been removed from Mrs Difford’s garden.
Findings
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There is no doubt that roots of the lilly pillies and other trees grow onto Mrs Difford’s property. I accept Mrs Difford’s statements and evidence showing that roots have blocked her sewer pipe on several occasions. I accept her claim that this is a nuisance and a health issue.
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Given their proximity to the boundary, it is likely that roots of some of Mr Davidson’s trees have grown into Mrs Difford’s sewer pipe. It is also possible that roots of other trees, such as those in front of Mrs Difford’s dwelling, have grown into the pipe. For the purposes of the Trees Act, I must be satisfied that roots of a particular tree have caused damage before I can make orders for that tree. I cannot be satisfied of that for each of Mr Davidson’s trees. Orders for removing the entire row of trees may result in trees that are not causing damage being removed. The Trees Act, in particular at s 10(2), does not allow such orders to be made.
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Even if I accept that the group of trees has caused damage and I could make orders for the entire group, I must first consider other matters.
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Mrs Difford said her sewer pipe was first blocked around five years ago. She has several invoices for unblocking the pipe over these years. At no time before making this application did she raise the issue with Mr Davidson or ask him for compensation. He could do nothing therefore to prevent any damage his trees might be causing. I do not accept that Mrs Difford has made reasonable effort to reach agreement with Mr Davidson, as required by s 10(1)(a) of the Trees Act.
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Furthermore, the Court has on many occasions considered the issue of tree roots growing in ageing terracotta sewer pipes. Cracks in joints of such pipes allow fine roots to enter and proliferate. They may then contribute to damage but are rarely the initial cause. There is no evidence here that roots caused any damage in the first instance, only that they were inside, and blocked, the pipes.
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As with tree branches, a neighbour has the right of abatement to cut roots to the boundary line if this does not damage the tree. Mrs Difford may prune tree roots or install a root barrier. This might prevent roots of Mr Davidson’s trees growing into her pipes, but would not prevent roots of other trees from doing so. Lining her sewer pipe, or replacing it with a PVC pipe, would likely prevent any further damage from all trees. This is a matter for her and does not require orders from the Court.
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Mr Davidson has not been unreasonable in planting a row of trees that are maintained at a small size. He was unaware that they might be causing any damage. No orders will be made for compensation.
Orders
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As a result of the foregoing, the orders of the Court are:
The application is dismissed.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 29 November 2018
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