Fifield v Sang and Wang

[2018] NSWLEC 1377

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fifield v Sang and Wang [2018] NSWLEC 1377
Hearing dates:	18 July 2018
Date of orders:	18 July 2018
Decision date:	18 July 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – blocked sewer pipe – terracotta pipes – jurisdiction must apply to a tree, not trees in general
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Hill v Dance [2007] NSWLEC 642 Knight v Simmons [2018] NSWLEC 1231 McDonnell v Harrison [2012] NSWLEC 1291 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Category:	Principal judgment
Parties:	Neville Fifield (Applicant) Fei Sang (First Respondent) Tony Wang (Second Respondent)
Representation:	N Fifield, litigant in person (Applicant) F Sang, litigant in person (Respondents)
File Number(s):	102676 of 2018

Judgment

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

Background

1. A large tree of unknown species grew in the rear garden of Ms Sang’s and Mr Wang’s Cherrybrook property, approximately one metre from the common boundary shared with Mr Fifield’s property.

2. In early June 2017 Mr Fifield’s sewer pipe became blocked. He called a plumber, who came and repaired the pipe on the same day. The plumber cleared the pipe of roots and relined the pipe at a cost of $3,443 to Mr Fifield.

3. In July 2017 Mr Fifield (‘the applicant’) asked Ms Sang and Mr Wang (‘the respondents’) to remove the large tree on their property, saying its roots had blocked his sewer.

4. In October 2017 Mr Fifield asked the respondents to compensate him $3,443 for the plumber’s costs.

5. Mr Fifield subsequently asked the respondents to remove eight smaller trees in a hedge on their property, saying their roots had blocked the sewer.

6. When asked, the respondents removed the large tree and then the eight smaller trees from their property. They did not pay Mr Fifield compensation, as the builder that was undertaking renovation works to their property estimated that he could have done the works for $1,320.

7. Still later, Mr Fifield asked Ms Sang and Mr Wang to remove other trees from their property, saying it was the roots of these trees that had blocked his sewer.

8. The respondents say that the applicant appears to want all trees on their property removed, and are unsure when his requests for further tree removals will end.

The application

9. Mr Fifield has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking an order that the respondents pay him $3,443 in compensation for the repair works carried out to his sewer pipes.

Framework of the Trees Act

10. If I am satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

The applicant’s submissions

11. Mr Fifield submits that the pipes would still be functioning had they not been blocked by the respondents’ trees’ roots. He says the pipes need to be repaired urgently to prevent sewage overflowing onto his property. He worked for many years in the building industry and deemed the plumber’s costs to be reasonable. He had difficulty contacting the respondents as their contact address was not known to him. He attempted mediation via the Community Justice Centre but received no response from the respondents.

12. Mr Fifield says the pipes are now repaired and do not require further works.

The respondents’ submissions

13. Ms Sang and Mr Wang submit that the applicant’s sewer pipes were terracotta pipes, likely to be deteriorating due to their age of more than 30 years. Their own sewer pipes, closer to the trees that were removed and to those that remain on their property, have not been blocked by tree roots. They had no prior warning that their tree’s roots might cause damage. They submit that they are willing to pay the applicant $1,320 compensation, being the cost estimated by their builder to undertake the completed repairs described on the plumber’s invoice. They did not receive any correspondence regarding mediation from the Community Justice Centre.

Findings

14. I find that it was reasonable for Mr Fifield to have the plumber repair the pipes on the day the plumber was called. Waiting for further quotes or to contact the respondents may have created a health risk.

15. I accept the description on the plumber’s invoice (Exhibit C) that roots had entered the ‘cracked clay sewer pipes’. I find that the pipes were terracotta pipes, close to, or perhaps more than, 30 years old. This is perhaps the effective lifespan that can reasonably be expected from such pipes. Roots may have entered the pipes through cracks. By blocking the pipes, tree roots can be considered as a cause of damage, but the primary cause is the condition of the pipes that allowed root ingress.

16. In Hill v Dance [2007] NSWLEC 642, at [11, 12], the Commissioners apportioned the cost of sewer repairs 50/50 between the parties. In that case, the respondents had prior notice that their trees might be causing damage.

17. In P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 the Commissioners at [23] found the respondents should not pay for any repair works prior to being notified of the issue:

We are of the view that it is not appropriate to require the University to meet any portion of the costs prior to the date upon which the University was first notified of the problem.

18. In the same decision at [32, 33], the Commissioners apportioned the costs of later repairs based on proximity of the trees and foreseeability of damage.

19. In Knight v Simmons [2018] NSWLEC 1231, at [31], the circumstances described are most similar to those in the current matter. I dismissed that application, as I will do here for the same reasons.

20. I note that Part 2 of the Trees Act does not apply to trees generally, but to trees that are the subject of the application. Each tree must be identified and each tree must meet the jurisdictional threshold before the Court can make orders for that tree. Mr Fifield has not provided any evidence that would demonstrate to the Court which tree has caused damage. In McDonnell v Harrison [2012] NSWLEC 1291 at [5], Moore SC and Fakes C explained:

The Act requires that we consider for each of the trees whether it has caused, is causing, or is likely in the near future to cause, damage to the McDonnell's property and whether it is a risk of injury to any person.

I cannot make orders for relating to damage caused by a tree unless I am satisfied which tree caused the damage.

21. The pipes are now lined. If done properly, this will prevent any roots entering the pipes for the foreseeable future. (Effectively, this means that there was no need for the respondents to remove any trees to prevent further damage.)

22. The respondents could not have prevented the damage. They received no warning that damage was likely, and there were no indications that would have led them to expect their trees would cause damage.

23. By Mr Fifield’s statements I take it that no further works to the sewer pipe are required. While I note the respondents’ generous offer of compensation, based on my findings above I will not make any orders for compensation

Orders

24. As a result of the foregoing, the application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 24 July 2018