Smallwood v Sager - [2015] QCAT 199

CITATION:

Smallwood v Sager [2015] QCAT 199

PARTIES:	Michael Zane Smallwood (Applicant)
v
Wayne Sager and Karen Sager (Respondent)

APPLICATION NUMBER:

NDR242-13

MATTER TYPE:	Other civil dispute matters
HEARING DATE:	On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

2 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal orders that Wayne Sager and Karen Sager pay Michael Zane Smallwood the amount of $3,568.96 within 21 days of the date of this order.

CATCHWORDS:

TREE DISPUTE – where claim for compensation in respect of tree root damage to drainage system – whether compensation payable for events occurring prior to Act coming into force.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 46,48,49,66 and 72

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Mr Smallwood resides at 165 Cameron Street, Ayr and is the neighbour of Mr and Mrs Sager who reside at 167 Cameron Street. The Sager’s have two trees on their property a frangipani and a paperbark. Over many years, Mr Smallwood has had issues with his plumbing and has incurred in excess of $14,000 in costs in respect of the Burdekin Shire Council dealing with the plumbing problems. Over the same time, Mr and Mrs Sager have made complaints to all levels of government about the Smallwood residence including in regard to sewage overflow.
Mr Smallwood has made an application[1] to the Tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). Mr and Mrs Sager are tree-keepers[2] and Mr Smallwood is alleging that he is a neighbour[3], as the owner of adjoining land affected[4] by the trees on Mr and Mrs Sager’s land. Mr Smallwood is alleging that it is the Sager’s trees, which are causing the blockage to his sewage pipes. He is requesting the Tribunal to order[5] that the trees be removed and he be paid compensation in respect of the costs he has incurred for attending to the damage.
[1]Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld) s 62.
[2]Ibid s 48.
[3]Ibid s 49.
[4]Ibid s 46.
[5]Ibid s 66.
The Tribunal appointed an expert tree assessor to inspect the trees and the properties and to provide a report to the Tribunal[6]. The expert, Ms Roxanne Taylor was briefed with the material filed by the parties and made a report on the alleged damage to Mr Smallwood’s sewerage and recommendations about the trees.
[6]QCAT Practice Direction No 7 of 2013.
Ms Taylor performed her inspection on 3 May 2014 and provided a report dated 18 May 2014. She identified two trees on the Sager’s property; Tree A, a Plumeria rubra or commonly known as a Frangipani and Tree B, a Melaleuca leucadendra or commonly known as a Paperbark. Ms Taylor stated “during the onsite tree assessment tree roots were detected on the applicant’s land and were traced towards the vicinity of the drainage/sewer pipes. In my professional opinion, the tree roots of which were observed on the applicant’s land were coming from Tree B.”
Ms Taylor noted that the respondents stated that the trees provide valuable privacy and that there were a number of mature specimens with the two in the application as part of others along the side boundary with the applicant’s property. As the removal of the tree was at issue[7], Ms Taylor considered other alternatives such as a root barrier and advised that as the trees were close to the fence, within 24 cms, any installation of a root barrier may have an impact on the stability of the tree.
[7]Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld) s 72.
Ms Taylor recommended that Tree B, the paperbark be removed to ground level with the stump to be poisoned and no work was required to tree B. As an alternative Ms Taylor gave directions as to how a root barrier should be installed. The Tribunal notes that the Sager’s accepted the need for the removal of Tree B and this was performed around July 2014.
The Tribunal may where a tree is affecting a neighbour’s land[8] require a tree-keeper to pay compensation to the neighbour for damage to the neighbour’s land or property on the neighbours land[9]. Mr Smallwood is asking for compensation in respect of the costs of works to remove blockages from and replace damaged sewerage and drainage pipes on his land. The invoices are as follows:-
a)    Burdekin Shire Council date 30 April 2007 for Clear blocked drains at 165 Cameron Street, Ayr           $785.85;
b)    Burdekin Shire Council date 30 October 2007 for Repairs to damaged water service at 165 Cameron Street, Ayr on Sunday 14 October 2007 $229.23;
c)    Burdekin Shire Council date 16 January 2008 for Legal costs enforcement officer fees, court filing fees and solicitor fee, for recovery of payment – Clear blocked drain at 165 Cameron Street, Ayr $413.80;
d)    Burdekin Shire Council date 19 March 2008 for Clear blockage and replace sewerage pipe at 165 Cameron Street, Ayr. Labour, Plant and materials                 $8,748.27;
e)    Burdekin Shire Council date 19 June 2008 for Clear blocked drains at 165 Cameron Street, Ayr enforcement warrant costs, judgment costs, warrant due to non-attendance, warrant and enforcement hearing $726.00;
f)     Burdekin Shire Council date 24 December 2009 for Cost of removing blockage from sewerage pipes at 165 Cameron Street, Ayr $803.00;
g)    Burdekin Shire Council date 28 June 2012 for Clear blocked drainage at Smallwoods residence - 165 Cameron Street, Ayr           $704.70; and
h)   Liessmann Holdings Pty Ltd to Burdekin Shire Council 31 October 2013 Description: Mr and Mrs Smallwood 165 Cameron Street, Ayr – jetter lines to loosen tree roots, dig up clay sewer pipe and replace with PVC pipe so as to remove tree roots $2,864.26.
[8]Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld) ss 66(2).
[9]Ibid, para 66(5)(f).
The Tribunal notes that the work performed on 31 October 2013 followed a show cause notice, which was sent to Mr Smallwood on 4 October 2013. The show cause notice states that in June 2012, plumbing contractors carried out plumbing and drainage at the premises, which revealed foreign material, and tree roots were blocking the house drain. Council has also received several complaints over the last 12 months raising concern about the generation of grey water. That the property was inspected on 18 September 2013 and evidence was observed that would suggest blockage of the drain was causing grey water to overflow onto the concreted surface. Council stated that it believed an enforcement notice should be given requiring Mr Smallwood to replace or repair the affected house drain. Ultimately, that work was performed by Leissmann Holdings Pty Ltd in accordance with the invoice listed above.
The Sager’s in their response stated that it was their opinion that the blockages were as a result of foreign material being put into the sewerage system. They provided a copy of an invoice from Leissmann Holdings Pty Ltd dated 13 November 2009, which states “dig out lines and check blockage. Clean out VB cans, lids, hair clips and small tree roots”. Ms Taylor dealt with this issue in her report. She states that the applicant agreed that this was the case and that, it was caused by the plumbers on the previous occasion not replacing the grate and Mr Smallwood’s grandchildren placing some of these items in the drain.
Ms Taylor stated from the other photos supplied with the application included those from the time work was done in October 2013 there is ample evidence to show the existence of tree roots and the damage incurred to the drainage pipes.
While some of the blockage may have been as a result of foreign objects, the Tribunal accepts Ms Taylor’s evidence that the primary cause of the blockage is the tree roots from the Sager’s tree. The Tribunal therefore, is satisfied that Mr Smallwood’s land, specifically his drainage pipes have been affected by the roots of the tree-keepers tree and that he is entitled to compensation for the expenses incurred in dealing with the damage.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) came into force on 1 November 2011 and so any compensation payable should be limited to compensation for expenses incurred after that date. As an Act, changing the law ought not to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities, which the law had defined, by reference to the past events[10]. The amount of compensation is then limited to the last two invoices in the amounts of $3,568.96 as they represent work which has occurred after 1 November 2011.
[10]Dixon CJ at 267 in Maxwell v Murphy (1957) 96 CLR 261.
The Tribunal orders that Wayne Sager and Karen Sager pay Michael Zane Smallwood the amount of $3,568.96 within 21 days of the date of this order.