Ding v Phillips

[2008] NSWLEC 1268

Land and Environment Court

of New South Wales

CITATION:	Ding & anor v Phillips [2008] NSWLEC 1268
PARTIES:	APPLICANTS Steven Ding & 242 Capital Pty Limited RESPONDENT Linda Phillips
FILE NUMBER(S):	20217 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Compensation - Trees (Neighbours) :- Failure to consider other vegetation Absence of notice to tree owner
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Buckingham v Ryder [2007] NSWLEC 458 Briginshaw v Briginshaw (1938) 60 CLR 336 Robson v Leischke [2008] NSWLEC 152
DATES OF HEARING:	3 July 2008
EX TEMPORE JUDGMENT DATE:	3 July 2008
LEGAL REPRESENTATIVES:	APPLICANT First applicant in person RESPONDENT Mr M Knight, solicitor McCabe Terrill Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

3 July 2008

08/20217 Steven Ding & 242 Capital Pty Limited v Linda Phillips

JUDGMENT

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

1 COMMISSIONERS: We have watched three sets of DVD footage from the camera inspection of the sewer pipe in the applicants’ property. The camera, we were informed during a conversation by mobile telephone with the plumber who operated it, was run from the inspection entry point closest to the Sydney Water sewer main at the rear of the property through to the point where, adjacent to a bathroom, the sewer plumbing connects to the house. The camera footage which we have observed is, on our experience, exceptionally clear and well defined. There is no doubt that the data logger, from our measurements using a tape measure brought by the Court, accurately reflects the length of the sewer pipe traversed (being some 20.7 m from the inspection point to the point of the gully trap adjacent to the bathroom).

2 The application seeks an order for compensation for and rectification to damage to the sewer pipe and an element of pathway in the vicinity of the house. The application is based on a coral tree which was growing on the adjacent property to the east.

3 We carefully examine the line of the sewer and, using the tape measure, have measured the various points along the line of the pipe where the data logger in the camera discloses that there are tree roots at either junctions in and/or breakages to the sewer pipe.

4 The first of those is 5.2 m from the inspection point at the rear of the property where the video discloses a break in the pipe and intruding tree roots.

5 We interpolate that we accept the evidence given by Mr Ding that the state of root intrusion into the pipe is less than that which was originally observed in late 2007 (as a consequence of the pipe having been cleaned by electric eel during earlier plumbing activity prior to the camera inspection).

6 However, the matters which we are considering at this time do not relate to the extent of root intrusion into the pipe – merely to the question of the location and possible causes of these tree roots.

7 At this point, 5.2 m from the rear inspection point, there is a ground level stump which appears to be a Camellia from the epicormic growth growing from the stump. This Camellia is located on the applicants’ property.

8 The next point of pipe break and root infestation is at 5.9 m from the rear inspection point. In the vicinity of that point, there are two stumps on the applicants’ property at ground level (these are of an unspecifiable nature there is no significant epicormic growth which would enable us to identify them).

9 The third element of root intrusion is at 7.1 m from the rear inspection point. This is in the vicinity of several significant stems of a Jasmine vine which grows adjacent, on the boundary between the two properties.

10 We observe, at this point, that the Court has previously held, in Buckingham v Ryder [2007] NSWLEC 458, that vines are not trees for the purposes of the Trees (Disputes Between Neighbours) Act 2006. Even if the Jasmine were able to be considered a tree under the Act, the applicants have provided no evidence as to where its growing points are located with respect to the boundary between the properties. In addition, immediately adjacent and in the vicinity of the 7.1 m mark, there is a further stump taken off at ground level located on the applicants’ property

11 Some little distance further, at the 13 m mark from the rear inspection point, there are further root intrusions, through joints, into the pipe. There are Jasmine vine stems growing immediately adjacent on the fence.

12 The place where the tree on the neighbouring property, a Coral tree, had been located is between the 7.1 and 13 m mark. There are no roots shown in the pipe directly in the vicinity of where the coral tree had been located.

13 We note that the respondent in these proceedings is the former owner of the adjacent property who had sold and settled between the time of lodgement of the application and the first preliminary hearing. The question of any action against the present owners the property has been removed by their agreement to remove the coral tree (which removal had occurred prior to the hearing).

14 At 20.7 m from the rear inspection point, in the vicinity of the junction point to the bathroom, the furthest point reached and shown on the DVD footage, the roots here are in the vicinity of another set of Jasmine vine stems growing adjacent on the fence line.

15 With respect to each of the points where roots are shown in the pipe, there is at least one (and, in a number of places, several) alternative possible cause(s) of the roots being in the sewer pipe.

16 The applicant is obliged to prove to us on the balance of probabilities (and to the degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336) that the roots come from the Coral tree.

17 Given the existence of alternative potential vegetation causes at each of of the points where roots are disclosed in the sewer and the absence of any evidence about them, there is no basis whatsoever upon which we could be satisfied, on the balance of probabilities, that the roots of the Coral tree in fact intruded into the sewer pipe. As a consequence, we are of the view that this element of the application is entirely misconceived. On this aspect of the proceedings, had there been a proper consideration of what might have been alternative causes of vegetation roots in the applicants’ sewer pipe, this element of the application may never have been brought.

18 With respect to the damage to the path, first, similarly, we have no evidence that the damage was occasioned by the Coral tree.

19 Although this part of the path is in the vicinity of that tree, it is also in the vicinity of a Camellia located on the adjacent property and it is also in the vicinity of a number of significant stems of the Jasmine vine. We cannot be satisfied for the same reasons we have outlined with respect to the roots in the sewer pipe that the Coral tree was the cause of a lifting of the path here involved.

20 In any event, in even if we are wrong with this respect to the path lifting, the applicant did not draw what the attention of the neighbour to this matter until the end of 2007 and it is clearly obvious, from the state of the path lifting, that this has been taking place for some considerable time. Consistent with the matters about notice and state of knowledge that ought to be or actually was held by the respondent in such matters, as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 (at para 207 and referring back to paras 49 – 51), we would not be minded, as a matter of discretion, to hold the respondent liable for past damage to the path. There is no evidence that there has been any damage (let alone any significant damage) to the path since the matter was first drawn to her attention, at the earliest, at the end of 2007. For that further reason, we are also not prepared to make any order with respect to the path.

21 For the foregoing reasons, the application is dismissed.

Tim Moore Peter Thyer
Commissioner of the Court Acting Commissioner of the Court