Horwood v Pearson

[2015] NSWLEC 1010

Land and Environment Court

New South Wales

Case Name:	Horwood v Pearson & anor
Medium Neutral Citation:	[2015] NSWLEC 1010
Hearing Date(s):	29 January 2015
Decision Date:	29 January 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is upheld in part. (2) The respondents are to pay the applicant the sum of $880 by cheque sent by registered post within 14 days of the date of these orders.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to sewer pipe; was the respondent denied opportunity to resolve the issue; apportionment; application upheld in part; orders for compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Colling v Wilson [2009] NSWLEC 106 Hill v Dance [2007] NSWLEC 642 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Category:	Principal judgment
Parties:	Thelma Horwood (Applicant) Tony Pearson (First Respondent) Kelly Pearson (Second Respondent)
Representation:	Thelma Horwood, litigant in person (Applicant) Tony Pearson, litigant in person (Respondent)
File Number(s):	20898 of 2014

JUDGMENT   

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

Background

1. Mrs Horwood (“the applicant”) called a plumber to her Greystanes property in July 2014 to attend to a blocked sewer pipe. The plumber found roots in the terracotta pipe, a section of which he replaced with new PVC pipe. Mrs Horwood later informed her neighbours Mr and Mrs Pearson (“the respondents”) that roots were from one of their trees. She has applied to the Land and Environment Court seeking orders for compensation for the cost of the plumbing works. The application is made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”). The compensation Mrs Horwood proposes includes the $5,000 plumber’s bill, costs of $281 associated with making the application, and $200 for stress. The Act does not provide jurisdiction to order compensation for stress. Commissioners do not have the power to award costs associated with making an application. If Mrs Horwood wishes to pursue that she must lodge a Notice of Motion for that issue to be heard by a Judge or the Registrar of the Court.

2. The Pearsons say they were denied the opportunity to deal with the issue as they were not informed until well after the plumbing works occurred. They did not have an opportunity to obtain quotes for the works. They say that the costs incurred by Mrs Horwood were higher than quotes they have since obtained. Furthermore they say there is no evidence that roots from their tree caused any damage. Nevertheless they had the tree removed as soon as they were made aware of the issue.

3. The jurisdictional framework of the Trees Act requires that the Court be satisfied of certain tests before making orders. In this case I must be satisfied that the respondents’ tree caused damage to the applicant’s property. There is then a range of matters that must be considered before the Court makes orders, if any, which it determines to be appropriate. The principal questions are:

   (a)Did the Pearsons’ tree cause damage to Mrs Horwood’s sewer pipe?

   (b)What actions did the parties take, or not take, to address the problem?

   (c)What amount of compensation, if any, should the respondents pay to the applicant?

Findings

1. The onsite hearing allowed observations of the situation. The sewer pipe works were on the applicant’s property, close to the common boundary and close to the remaining stump of what appears to have been a Cypress tree on the respondents’ land. There are no other substantial trees in the vicinity. The plumber’s letter states that the terracotta pipe was cracked and had tree roots inside. On the balance of probabilities I am satisfied that roots of the respondents’ tree were a cause of damage to the applicant’s sewer pipe, although not the only cause.

2. Mrs Horwood says there were no problems with taps and toilets within her house at the time that she noticed water or sewage coming out of the inspection point near the front of her property in July. She got H2O Plumbing to come to her property. The plumber inserted a camera in the pipe and told her that roots were in the pipe and that a section of pipe needed to be replaced as it was all broken. He quoted $7,000 for the works. She got the plumber to do the works the next day or thereabouts, without obtaining further quotes and without informing the Pearsons. The plumber carried out the works and according to Mrs Horwood discounted the price, charging $5,000.

3. Two quotes since obtained by the respondents for the same scope of works are for $2,200. While the works may have turned out to be more involved than these quotes allow for, the quotes do not appear unreasonable. They have been obtained from independent contractors not personally known to the respondents.

4. I do not accept that urgent action was required at the time of the works, as taps and toilets in Mrs Horwood’s house were working and did not pose any health risk. I accept that the respondents were denied the opportunity to have any influence in the manner or cost of works for which they were then asked to pay. To only obtain one quote prevented comparison with other possibly more competitive quotes. For this reason I will use the respondents’ quotes as a benchmark for the reasonable cost of the works.

5. The respondents were aware of the presence of 40-year-old terracotta sewer pipes in the vicinity of their tree. I find that it is reasonable for the respondents to contribute to the cost of the works. I also note that the respondents removed their tree as soon as they were informed of the problem.

Apportionment

1. In Hill v Dance [2007] NSWLEC 642 the Court considered that the parties should each pay 50% of works to sewer pipes where roots from the respondents’ trees were found in the applicant’s sewer pipes, which were terracotta pipes some 40 years old. In P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 the respondents were responsible for 60% of the cost of works to sewer pipes. In Colling v Wilson [2009] NSWLEC 106, where roots were found in terracotta pipes more than 40 years old, the parties each paid 50% of the cost of rectification.

2. Terracotta pipes of this age are unlikely to be in perfect condition. I accept that roots are likely to be a cause of damage but find that the age of the pipes and their condition are also likely to be major contributing factors.

3. Considering that: there was no need for immediate works; that the applicant could have informed the respondents; that more competitive quotes might have been obtained; that the terracotta pipes were 40 years old and unlikely to be in perfect condition; and that the applicant now has better pipes than she had previously; I estimate a reasonable contribution by the respondents to be 40% of $2,200, being $880.

Orders

1. On the basis of the above, the Court orders that:

   (1)The application is upheld in part.

   (2)The respondents are to pay the applicant the sum of $880 by cheque sent by registered post within 14 days of the date of these orders.

____________________________

D Galwey

Acting Commissioner of the Court

Amendments

Minor typographical error