Mostafiz v Toll
[2020] NSWLEC 1672
•23 December 2020
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Mostafiz v Toll [2020] NSWLEC 1672 Hearing dates: 21 August 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders:
(1) The applicants (or a suitably qualified horticulturist or arborist engaged by the applicants) are to cut the woody root that has damaged their sewer pipe, at any preferred point between the pipe and the common boundary they share with the respondents. The root must be cut cleanly with a saw.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the neighbouring tree caused damage – sewer pipes – whether the tree must be removed – orders for root pruning
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson [2009] NSWLEC 1148
Texts Cited: Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
Category: Principal judgment Parties: Mohammad Mostafiz (First Applicant)
Shormin Mostafiz (Second Applicant)
Graham Toll (First Respondent)
Gail Toll (Second Respondent)Representation: T Mostafiz (Agent) (Applicants)
G Toll (Litigant in person) (First Respondent)
G Toll (Litigant in person) (Second Respondent)
File Number(s): 2020/99856 Publication restriction: No
Judgment
Background to the application
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Mohammad and Shormin Mostafiz (the ‘applicants’) reside at their Ingleburn property. After their sewer pipe became blocked in October 2019, they had it cleared by a plumber. They subsequently undertook excavations around the pipe and found large tree roots.
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On the neighbouring property belonging to Graham and Gail Toll (the ‘respondents’) is a Liquidambar styraciflua (liquidambar) (‘the tree’), only a metre or so from the common boundary.
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Mr and Mrs Mostafiz have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for repairs to their sewer pipe, compensation from the respondents for sewer pipe clearing costs, and for removal of the tree.
Framework for this decision
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The Court’s ability to make orders is limited, 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.
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The Court can make orders, such as those at s 9 of the Trees Act, to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12.
The hearing
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Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the extensive material filed with the Court, to be considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.
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The applicants’ son, Tasnim Mostafiz, represented his parents as their agent. The respondents were self-represented.
The applicants made reasonable effort and gave notice
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After they first found tree roots at their pipe, the applicants wrote to the respondents, as they thought it best to have a written record of all correspondence. They sent the respondents a video prepared by their plumber, showing damage caused to their sewer line.
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The respondents wrote back to the applicants, including a letter in which they stated: “…we do not see that our tree is the cause of your plumbing problems.” The applicants subsequently applied to the Court.
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I am satisfied that they made reasonable effort to reach agreement with the respondents. They gave the required notice of their application.
The tree
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The liquidambar grows on the respondents’ property only a metre or so from the common boundary they share with the applicants. This mature tree is in good condition.
The tree caused damage to the applicants’ property
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In October 2019 the applicants’ sewer pipe in their back garden became blocked, causing their toilets to overflow. They engaged a plumber, who cleared the blockage and advised that tree roots had caused the blockage. The applicants excavated the area around the pipe and found a large tree root more than 100 mm in diameter against the pipe. The only proximate tree of any significant size was the liquidambar, only 2–3 metres away. Photographs show that the large root had grown against and distorted the sewer pipe. This was the initial damage caused by the tree root. Obstruction of the pipe was the secondary damage caused by the tree.
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The respondents have resisted the possibility that their tree is the cause of damage to the pipe. They argued that the applicants have not demonstrated that the root grows from their tree. They say other trees on the applicants’ property might have caused the damage. They say the sewer pipe is under stress due to the applicants’ use of their dwelling as a family day care business. According to the respondents, their own plumber said it was difficult to say which tree had caused the damage.
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The applicants pointed out that other trees on their property are smaller in diameter than the exposed root, and too distant to have a root of this size in this location. They filed photographs and videos that support this.
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I find that the only tree likely to have a root of this size in this location is the respondents’ liquidambar. Therefore, on the balance of probabilities, I am satisfied that the respondents’ tree has damaged the applicants’ sewer pipe.
Consideration of relevant matters
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The Trees Act requires not only that the Court determines whether the tree has caused damage, but also that I consider matters at s 12 when deciding if orders should be made, and in defining the nature of any orders. I have considered all matters at s 12, but discuss here only those that are relevant to this decision.
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The tree is close to the common boundary. It provides shade, amenity and ecosystem services. It is an exotic species and does not contribute significantly to the local ecosystem.
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While I have no doubt in my mind that roots in the sewer pipe caused blockage, there may be relevant factors that have led to this situation. It is unusual for roots to ‘break into’ an undamaged PVC pipe. An existing crack might allow fine roots to enter the pipe, after which roots proliferate and expand, blocking the pipe.
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The applicants’ photos show that the root growing against the pipe is equivalent to, or larger than, the pipe’s diameter. The forces of root growth would be sufficient to displace the pipe, either cracking it or blocking it. From the photographic evidence, I am satisfied that the liquidambar’s root has damaged the pipe. It is possible that an existing leak at a join in the pipe (the damage is at the junction of the pipe and an inspection shaft) encouraged root growth here, but that cannot be determined from the evidence before me.
Does the tree need to be removed?
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Cutting the exposed root on the applicants’ property might affect the liquidambar in the short term, but this healthy tree should recover from any impacts and continue to thrive. If sewer pipes are replaced and all joints properly sealed, and trenches backfilled with suitable aggregate rather than soil, the risk of future damage would be minimised. Therefore, the liquidambar does not need to be removed. An order will be made for cutting and removing the root that has damaged the pipe.
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The applicants argued that the tree would need to be removed if a root barrier is not installed to prevent further root growth, which might lead to more damage in future. However, the proper replacement of the sewer pipe, described above, should minimise the likelihood of future damage. It is unnecessary to make orders for installing a root barrier.
Who should pay for pipe repairs?
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In October 2019 the applicants paid $600 for their sewer pipe to be cleared. They have a quote from Wilco Home Services of $4,800 for carrying out the works required to repair their sewer pipe. The applicants have been proactive in responding promptly to the initial problem, having their sewer pipe cleared, determining the cause of the problem and its solution, contacting the respondents, and obtaining a quote for the works.
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Although the respondents have been reluctant to acknowledge that roots in the applicants’ sewer might be from their tree, they have not been responsible for any action, nor for any inaction, leading to the damage, other than growing and maintaining a tree where one might be expected to grow. They had no warning of the damage. At the time the damage occurred, they were unaware that roots of their tree were problematic. Prior to being informed of the damage, there was no reason for the respondents to take any action to prevent damage, as the damage was not reasonably foreseeable. Therefore there is no reason to shift the onus or cost of repair works to the respondents.
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The cost of repairing the sewer will remain with the applicants. There is no need for the Court to make orders for repairing the sewer, as these are works for the applicant to arrange.
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If repairs to the sewer are thorough, the risk of damage recurring will be minimised. However, should circumstances change, and further damage occur in future, the applicants may reapply to the Court, as per the Court’s findings in Hinde v Anderson [2009] NSWLEC 1148.
Orders
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As a result of the foregoing, the Court orders:
The applicants (or a suitably qualified horticulturist or arborist engaged by the applicants) are to cut the woody root that has damaged their sewer pipe, at any preferred point between the pipe and the common boundary they share with the respondents. The root must be cut cleanly with a saw.
……………………………….
D Galwey
Acting Commissioner of the Court
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Amendments
01 September 2021 - Amended jurisdiction to Class 2.
Decision last updated: 01 September 2021
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