Somuncu v McDowell

[2024] NSWLEC 1089

Land and Environment Court

New South Wales

Medium Neutral Citation:

Somuncu v McDowell [2024] NSWLEC 1089

Hearing dates:

25 August 2023

Date of orders:

01 March 2024

Decision date:

01 March 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application to remove the two trees is upheld.

(2)   The application for compensation is dismissed.

(3)   The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the two fig trees to ground level and to poison their stumps within 60 days of the date of these Orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4)   The respondent is to give the applicants 2 days’ notice of the works in (3).

(5)   The applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the applicants and the respondent. The replacement fence must be timber lapped and capped, with a height of 1.8 metres. These works are to be completed within 90 days of the date that the trees are removed, with the half the cost paid by the applicants and half the cost paid by the respondent.

(6)   The applicants are to give the respondent 2 days’ notice of the works in (5).

(7)   The applicants and the respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding tree removal and fencing orders.

(8)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – two mature fig trees – damage to neighbouring property – to what extent the trees caused any damage – whether tree removal is required – compensation – whether damage existed when the applicants purchased their property – whether the respondent could have prevented the damage – tree removal ordered – no compensation for damage

Legislation Cited:

Dividing Fences Act 1991, s 13A

Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:

Body v Bracks [2021] NSWLEC 1614

Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181

Liang v Marsh [2011] NSWLEC 1026

Texts Cited:

Hornsby Council Development Control Plan 2013

Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category:

Principal judgment

Parties:

Alper Somuncu (First Applicant)
Seda Somuncu (Second Applicant)
Jennifer Anne McDowell (Respondent)

Representation:

Counsel:
G Carolan (Applicants)
C Koikas (Respondent)

Solicitors:
MCK Lawyers (Applicants)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/160887

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Jennifer McDowell (the respondent) owns a residential property in Castle Hill, in Sydney’s northwest. On Ms McDowell’s property, near her rear boundary, are two mature trees, both Ficus microcarpa var. hillii (Hills Weeping Fig) (the trees). Alper and Seda Somuncu (the applicants) own the adjoining property behind Ms McDowell. The Somuncus claim the two trees have damaged their property and will cause further damage. The Somuncus applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the trees to be removed, and for the respondent to pay compensation for the cost of repairing damage to their swimming pool drainage, stormwater drainage, and paving around their swimming pool, and for the cost of installing a root barrier. Total compensation sought in their application (Exhibit A) was approximately $96,000. They also want Ms McDowell to replace the boundary fence.

2. During the hearing, the applicants reduced the scope of the compensation order, limiting it to the cost of repairing stormwater drainage only, approximately $56,000.

3. Ms McDowell proposed alternative orders for the trees to be removed at her expense, for the parties to share the cost of replacing the boundary fence, and for the Court to refuse the Somuncus’ application for compensation.

4. The applicants engaged William Dunlop (an arborist), Leigh Appleyard (a structural engineer) and Ross Brown (a hydraulic engineer) to prepare reports. At the onsite view on 25 August 2023, the Court inspected the trees, the boundary fence, and relevant parts of the applicants’ property. The experts gave further oral evidence onsite and back in Court.

Framework for this decision

5. The key jurisdictional tests in these proceedings are found 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.

6. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application. The key issues in dispute are: firstly, to what extent the trees have caused damage; secondly, whether the respondent could reasonably have prevented the damage; and thirdly, to what extent the applicants have suffered a loss as a result of any damage.

Reasonable effort to reach agreement

7. The applicants wrote to the respondent in August 2021, bringing the issues of property damage to the respondent’s attention. Mr Somuncu asked Ms McDowell to prune the trees, which she did. Mr Somuncu wrote several emails to Ms McDowell during September and October 2021. In February 2022, MCK Lawyers wrote to the respondent on behalf of the applicants, asking her to remove the trees within two weeks, or the applicants would commence court proceedings. Around this time, the tone of communications between the parties became less cooperative. Subsequent communications indicate they reached an impasse. The Somuncus then applied to the Court. I am satisfied that the applicants made a reasonable effort to reach agreement with the respondent.

The trees

8. Hills Weeping Fig is a tree species widely planted throughout Sydney. These two trees are 10-11 metres tall with crowns spreading 11-14 metres across and stem diameters of 65-70 cm. Both trees are healthy, with little deadwood present in their crowns. As is typical for the species, some stem and branch unions are narrow with bark inclusions.

9. At par 65 of Mr Somuncu’s sworn affidavit (Exhibit B), he stated that the developer of this subdivision removed similar fig trees from other neighbouring properties, but not the respondents’ property as it had already been sold.

Damage

The boundary fence

10. The applicants obtained reports from Mr Dunlop, an arborist, Mr Appleyard, an engineer, and Mr Brown, an hydraulic engineer. None of their reports identified any damage caused by the trees to the boundary fence. During the onsite view, Mr Dunlop pointed out surface roots from one of the trees growing towards and beneath the fence. The fence is generally dilapidated, but I noted that its displacement was most pronounced near these roots. I accept that both trees have contributed to the fence’s poor condition. The fence is partly the applicants’ property, so the trees have caused damage to the applicants’ property (s 10(2)(a) of the Trees Act). The Court can make orders to remedy, restrain or prevent damage (s 9). The parties agree that the fence along the common boundary should be replaced entirely, and asked that orders be made for its replacement pursuant to s 13A of the Dividing Fences Act 1991.

Pavers

11. The trees are close to the common boundary fence between the parties’ properties. A narrow garden bed runs along the back part of the applicants’ property, supported by a low retaining wall. The remainder of the applicants’ back yard, a metre or so below the level at the boundary, is taken up by a pool surrounded by paving. Several pavers are loose, lifted, or displaced.

12. Mr Appleyard inspected the applicants’ property on 25 August 2022. He observed (Exhibit E, p 4): “…extensive evidence of invasive root systems throughout the tiled coping areas and stormwater drainage pits around the swimming pools”. He noted that “in many areas, tiles have been cracked and or [sic] debonded and lifted.” Mr Appleyard recommended installation of a root barrier and replacement of damaged tiles, advising that a budget of $20,000–30,000 would be appropriate for these works.

13. Mr Dunlop, who inspected the site on 22 April 2022, identified damaged pavers on the western and eastern sides of the pool. After removing some damaged pavers to the west of the pool, he observed a small tree root beneath the paving. He visually identified the root, which he described as 20–30 mm in diameter, as being from a fig tree. He identified that root as the cause of damage to the paving.

14. During the onsite view I observed the damaged pavers and the root described above. The root has grown along a joint line between pavers – the path of least resistance. Mr Dunlop suggested that the deterioration of grout between paving tiles probably encouraged root growth in places. As the root has grown in girth, it has applied pressure against the tiles, dislodging some of them. I accept Mr Dunlop’s finding that the root is most likely from one of the two figs. I also accept that this root has contributed to the damaged paving.

15. This finding, that fig tree roots have damaged pavers, is not relevant to any compensation orders that might be made, as the applicants no longer seek compensation for damage to pavers. However, this finding indicates the extent of the trees’ root systems and their potential to cause or contribute to other damage, both issues that are relevant to the matter of preventing further damage.

Drainage

16. Beneath the paving that surrounds the applicants’ pool, and elsewhere on their property, is a stormwater drainage system designed to take surface water from the back yard, down each side of the dwelling to the lower street at the front of the property. Several pits in the paved area around the pool collect surface water to feed into the drainage system.

17. Mr Brown inspected the drainage system using a pipe inspection camera. His report includes findings and photographs from the inspection, along with recommendations and costings for its repair. Worth noting here are the instructions given to Mr Brown by MCK Lawyers for the applicants:

“…

Our clients’ property has been damaged by roots from two fig trees (on the neighbouring property behind them) penetrating their garden and drainage system and causing damage to the boundary fence, tiles, and pipes.

We have attached the deposited Plan 81500 and a google earth image of the two properties.

We would be obliged if you would accept our instructions to inspect the property in order to identify areas of damage and to ascertain the extent of work that is likely to be required to reinstate the drainage system.

…”

18. Mr Brown was not asked to identify the cause of any damage, only to identify damaged areas and to determine the remedy and its costs.

19. Mr Brown (at par 39 of Exhibit D) found the drainage system “…is principally constructed of 900mm [sic] unplasticised polyvinyl chloride piping (PVC).” ‘900mm’ is a typographical error, as elsewhere in his report he refers to the ‘90mm pipe’. Mr Brown undertook CCTV inspection of the drainage system. He found tree roots in some pipes, their presence preventing inspection of some parts of the drainage system. He found heavy silt and tree root ingress between pits P1 and P2, on the western side of the property, and between pits P2 and P3, the latter pit being near the centre of the property. In the eastern half of the property, he found debris and dry soil between pits P4 and P5 and “collapsed subsoil drainage” connecting to pit P5, but no tree roots. He found further pipe collapse and debris infiltration in drainage pipes toward the front of the property, unrelated to trees.

20. Mr Brown did not observe any cracks or opening in the pipes, but stated (at par 44): “Given the extent of the heavy ingress of tree roots, in my view and experience, it is more likely than not that there are openings within the wall of the 90mm PVC stormwater drainage pipework permitting the ingress of these tree roots, and the egress of stormwater into the surrounding ground strata during rainfall events of sufficient intensity and duration to completely fill the pipework.”

21. Mr Brown (at par 46) was “…not able to determine with any reasonable degree of accuracy whether the pipework suffered from adverse fall (back fall, being a fall away from the exit point of the drain)”.

22. Mr Brown concluded (at par 51) that: “Much of the stormwater drainage pipework installed within the rear pool area of the property is compromised to a larger degree by the infiltration of tree roots proper flow of water through the pipework” and that this prevents stormwater runoff being directed away from the rear of the property to the outlet at the street.

23. Mr Dunlop inspected the roots that were found on the western side of the property and concluded (on p 19 of Exhibit C) that they were from one or both of the fig trees:

“A small, opportunistic root was also observed growing into the northern-most drainage pit and towards the pit adjacent to the south-western corner of the pool (Figure 14). The morphology of this small root was the same as the aforementioned root. It is therefore highly likely that this root also forms part of the southern root plate growing from Tree 1 or Tree 2.

A thick mass of fibrous roots was observed within the northern and eastern pipes within the drainage pit adjacent to the south-western corner of the pool (Figure 15). The eastern drainage pit on the southern side of the pool was observed to contain no tree roots. However, it was observed to be functioning poorly (Figure 16). Recent damage to the northern portion of the dwelling within the subject site was associated with poor drainage from this eastern-most drain during heavy rain events.”

24. With the benefit of Mr Dunlop’s evidence onsite, along with my own observations, I accept that the roots found in pits and pipes on the western side of the property are from one or both of the fig trees. Mr Dunlop is correct that no roots were found in pipes or pits on the eastern side of the property. Mr Dunlop provided no reasoning, or findings from others, to explain his finding that poor drainage at the eastern-most drain was responsible for water damage to the dwelling during heavy rain.

25. Mr Dunlop then concluded (p 20) that roots in the western pipes caused the blockage on the eastern part of the property:

“The penetration of the observed opportunistic tree roots from Tree 1 or 2 into the northern-most pit and its expansion into a thick root mass in the south-western drain is the most likely cause of the poor drainage and associated flooding within the subject site.”

26. However, Mr Brown gave evidence that the pipes on the western side of the property drain to the street via pipes down the western side of the house, while those on the eastern side of the property drain to the street via pipes on the eastern side of the house. Pit 3, near the property centre, and Pit 4, to the east, are not connected by a pipe. On the evidence before the Court, I cannot be satisfied that tree roots have damaged any drainage pipes in the eastern half of the applicants’ property.

27. Tree roots have grown within pipes on the western side of the property and limited their function. This equates to damage. Left alone, the trees are likely to cause further damage of a similar nature in the near future. Despite Mr Dunlop’s evidence as to the cause of water damage to the dwelling, it seems reasonable to assume that blocked drains in the western part of the property might also have contributed to excess water reaching the dwelling.

28. Having found that both fig trees have damaged the boundary fence, and one or both of them have damaged part of the applicants’ drainage system, I can make orders to remedy or restrain the damage, and to prevent further damage (s 9 of the Trees Act), but only after considering relevant matters at s 12.

Consideration of s 12 matters

Location of the trees

29. The trees are on the respondent’s property, close to the common boundary shared with the applicants.

Requirement for a permit

30. The Court must consider (s 12(b)) whether interfering with the trees, such as pruning or removing them, would ordinarily require consent, such as a permit from the local council. In the absence of any evidence on this issue, I put this question to Counsel for each party. Mr Carolan, for the applicants, opined that consent would not be required, as Hornsby Council’s Development Control Plan 2013 includes an exemption for trees that are causing a nuisance, which, he argued, these trees are. No copy was provided to the Court, so I have checked Hornsby Council’s Development Control Plan 2013 (the Hornsby DCP). According to the Hornsby DCP, a permit is required to remove a tree, unless one of the exemptions applies. The trees are not an exempt species, they are not within 3 metres of an approved building’s foundation, and they do not meet this exemption: “Trees deemed by Council in writing and shown by recorded photographic evidence or written evidence provided by a qualified Arborist (AQF.5) as an imminent risk to human life or is likely to cause substantial damage to property in the near future.” The trees, as I found above, have caused damage to property and are likely to cause further damage in the near future. Damage directly caused by roots may or may not be substantial. Council has not deemed in writing that the trees are likely to cause substantial property damage in the near future, so the exemption does not apply. It is possible, but not known, that Council might deem such damage likely, if presented with the evidence that is now before the Court.

The trees’ benefits

31. The trees’ large spreading canopies make a significant contribution to the respondent’s landscape value. The trees provide ecosystem services including shading and cooling, reduction of water runoff, carbon sequestration, and pollutant removal. They are likely to provide some food source to fauna, along with other habitat values.

Other factors contributing to damage

32. The Court is required to consider at s 12(h)(i):

(h)  if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i)  anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

…

33. The evidence before the Court does not indicate that roots cracked the pipes in the first instance. Mr Brown found (see [20], above) that openings within pipe walls permitted the ingress of tree roots. During his oral evidence in Court, Mr Dunlop was asked if he thought roots had punctured or pierced the pipes. He answered that he thought not – rather, roots probably entered through existing pipe cracks, openings, or joints.

34. Mr Brown found no roots in pipes in the eastern part of the property, but found those pipes contained debris and dry soil, with “collapsed subsoil drainage”. They were somewhat flattened and did not function properly.

35. Questioned about standards at the time of construction, Mr Brown thought that the pipes were probably installed before 1989, at which time the relevant standard was a precursor to the Building Code of Australia and was “quite a loose standard”.

33. It seems that the condition of drainage pipes in the pool area had degraded over time, regardless of tree roots. Both Mr Brown and Mr Dunlop suggested that this degradation allowed tree root ingress. Considering the overall extent of damage, along with the existence of damage where no tree roots were found, tree roots seem to be a minor contributing factor to the pipes’ current condition.

Steps taken by the applicants and the respondent

37. The Court is required to consider at s 12(h)(ii):

(h)  if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

…

(ii)  any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage.

38. The Somuncus purchased their property on 9 April 2021. As stated in his affidavit (Exhibit B), Mr Somuncu’s gardener informed him in June 2021 that he had noticed some cracked tiles around the swimming pool and cracks in the rear retaining wall. His gardener told him that roots of the two fig trees appeared to have caused the cracks.

39. Mr Somuncu then engaged an arborist who inspected the damage and advised him that damage to tiles and the retaining wall had likely been caused by the respondent’s fig trees’ roots.

40. Mr Somuncu wrote to Ms McDowell on 28 August 2021, bringing the damage, and its probable cause, to her attention. He wrote: “Since there is no immediate danger at this stage, the recommended action, for now, is to prune the trees, keep them to a certain height and reduce their size, which would slow the growth of the roots. Therefore, would you please organise the pruning of the trees when you get a chance?”

41. Ms McDowell wrote back two days later saying she would prune the trees. On 7 October 2021 Mr Somuncu wrote: “Thanks for organising the pruning of the trees last week. This was essential because I could see some cracks on the retainer wall getting bigger and more tiles damaged in the past 6 months.” He then explained his concerns about the risk of the trees causing further damage to property, and attached a further report from an arborist. Mr Somuncu wrote that removal of the trees would be the best option and asked that Ms McDowell consider taking action “…before March 2022, the next autumn season.”

42. At par 22 of his affidavit, Mr Somuncu stated: “On several occasions starting from late 2021 and into 2022, during periods of heavy rain, I noticed that the ground floor of My Property would flood. There was flooding to the pool room, the rumpus room and the garage, all of which are on the ground floor.” He engaged Mr Brown to inspect the drainage in August 2022.

43. MCK Lawyers wrote to Ms McDowell on 17 February 2022 on the Somuncus’ behalf (Annexure K of Exhibit B):

“We are instructed that our client has notified you on several occasions of the issue he has with roots from your two fig trees penetrating his garden and causing damage to the boundary fence, tiles, and pipes.

We are instructed that in order to remedy the problem permanently the trees would need to be cut, the tiles removed, the pipes fixed, new tiles laid and the boundary fence would need repair or rebuilding. A temporary solution (if you wish to keep the trees) would be to prune the trees regularly, cut the roots back from the fence boundary line, and install a durable root barrier to prevent the roots from crossing over on to our client’s property.

We note that as the owner of the property, you have the legal responsibility to ensure that the trees do not interfere with our clients’ use and enjoyment of the land, and the trees do not cause damage.

We are instructed to demand the following:

That you give an undertaking that you will arrange to cut down the fig trees and remove the offending roots.

Provided that the trees are removed by 28 February 2022, our clients will bear the cost of repairing the damage caused by the roots, which is estimated to be approximately $30,000 but will not be determined until further investigation is carried out. If the trees remain, we are instructed that our client will apply to the Court to seek orders to have the trees removed and also compensation for damage caused to their property.”

44. Up until Mr Somuncu’s letter of 7 October 2021, Ms McDowell did everything that was asked of her. She was then asked to take action before March 2022. Flooding of the Somuncus’ dwelling began from late 2021, so the drainage system was apparently not functioning properly at that time. This did not result from Ms McDowell knowingly continuing a nuisance. She was not to know that tree roots were in any pipes.

45. Mr Dunlop gave evidence onsite that the fig roots he observed in Pit P1 were already 5–7 years old. During this time, they would be visible to anyone who looked through or removed the grate to inspect the pit. The applicants could have taken action some time before 2022 to prevent roots further proliferating within and obstructing the pipe.

46. Mr Somuncu suggested that previous owners of their property brought the issue of root damage to the respondent’s attention. Ms McDowell denied this. No evidence before the Court supports Mr Somuncu’s claim.

47. Mr Carolan submitted that, regardless of whether or not Ms McDowell had been put on notice of any tree root issue, she should reasonably have foreseen the issue. Mr Carolan referred to Body v Bracks [2021] NSWLEC 1614, where the Court found at [59] that “… if the damage was foreseeable to the applicants, it was equally foreseeable to the respondent, who is responsible for managing the tree and might have taken steps to prevent damage.” However, the Court found, two paragraphs earlier, at [57]: “Even in the absence of being notified, a property owner such as Ms Bracks might reasonably be expected to note damage caused by her tree when that damage is easily visible from within her own property. No arboricultural or engineering expertise is required to see that her tree is damaging the northern applicants’ dwelling…” This is markedly different from the situation in the current proceedings. The roots in the Somuncus’ pipes are not easily visible to Ms McDowell and she had no reason to suspect that her trees’ roots were in the pipes.

48. The Somuncus commenced these proceedings by filing their application on 19 May 2023. On 11 August 2023, on behalf of Ms McDowell, Shaw Reynolds Lawyers wrote to the applicants with evidence of the condition of the applicants’ property at the time they purchased it (in Exhibit 1). “In the interests of avoiding the costs associated with a hearing…” the respondent proposed consent orders:

“1. The application to remove the two trees is upheld.

2. The application for damages is dismissed.

3. The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to ground level and to poison the stump within 120 days of the date of these Orders.

4. The Respondent is to pay for the removal costs of the tree.

5. The Applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the Applicants and Respondent. These works are to be completed within 90 days of the date that the trees are removed, with the cost paid by the Applicants.

6. The Applicants and the Respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders.

7. No order as to costs.”

49. The respondent proposed entering into a Deed of Settlement confirming the consent orders. Nevertheless, the matter continued to a hearing.

Property condition at the time of purchase

50. The Court considers at s 12(j):

12(j) such other matters as the Court considers relevant in the circumstances of the case.

51. I find that the current situation – the condition of the Somuncus’ stormwater drainage system, and the presence of tree roots – is similar to the situation they purchased in April 2021. Mr Dunlop’s evidence indicates the presence of roots in the pipes for at least 5-7 years. During the onsite view Mr Dunlop stated that the root seen lifting pavers had not changed or grown noticeably in the 18 months since he first inspected it.

52. In the sub-floor area beneath the dwelling’s upper floor, just upslope from rooms on the lower floor where flooding has caused damage, previous owners of the applicants’ property installed an open drain. Mr Brown described this: “Note a subsoil drainage system has been provided to the subfloor area of the property comprising some half round drainage discharging to 65mm PVC stormwater drainage.” Its function, he said in oral evidence, was to deal with surface water. While we looked onsite at the PVC pipe to which the half-round drain discharged, Mr Brown stated that it appeared to be from around 1997.

53. The respondent obtained a copy of the property report (in Exhibit 1) received by the applicants at the time they purchased their property. In that report, the inspector noted (selected excerpts only):

• Floors General Condition [downstairs]: Moisture damage was noted to the floorboards at the rear left hand side corner.

• Paths/Paved Areas: Type & Condition: the concrete paths/paved areas have cracked and subsided in some areas at the rear and will require repair. This may present a tripping hazard. Rectification should be considered. [Photographs provided here show the same tiles around the pool that have since been manually removed to uncover tree roots.]

54. The inspector declared that assessing the adequacy of site drainage was not included in the report. The inspector recommended that a smoke test be carried out on drainage pipes to assess their condition and functionality. The applicants have not shown evidence of carrying out any such test.

55. A non-compliance certificate attached to the property sale contract noted deficiencies in the boundary fence, such that it did not meet the requirements of a pool fence.

56. Mr Koikas submitted that the stormwater drainage and other elements of the applicants’ property were already damaged well before they bought it. The evidence supports this. Mr Koikas submitted that the installation of an open drain beneath the dwelling indicates an attempt by previous owners of the applicants’ dwelling to prevent water flow there. If could be assumed that water has flowed beneath the dwelling for many years. I accept this to be the case.

57. Mr Somuncu explained that there was initially no water ingress to the downstairs parts of their dwelling after they purchased in April 2021; the issue began after heavy rain in late 2021. Mr Carolan submitted that the timing demonstrates an increase in root growth during 2021, resulting in water damage in late 2021. However, the evidence of both Mr Brown and Mr Dunlop suggests otherwise. It seems more likely that the problem existed but did not show itself during the drier months of April to October 2021. Then, November of 2021 was one of the wettest Novembers in Sydney this century, and above-average rainfall continued through the first part of 2022 to very high rainfall in March 2022.

58. While Mr Carolan submitted, on the one hand, that root damage to pipes should have been foreseeable to Ms McDowell, on the other hand he suggested it was beyond the applicants’ capacity to have knowledge of root damage when they purchased their property. Referring the Court to Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181 (Cyril Smith). Mr Carolan opined that damage to the Somuncus’ property was not manifest in April 2021, but has become manifest since. I think that is mistaken on two counts. Firstly, the property report prepared prior to the purchase date highlighted some of the issues (damage to pavers), and alerted the applicants to the possibility of others (pipe damage). Secondly, at [13] of Cyril Smith the Court found:

“[13] This analysis leaves open a critical question: a structural defect may reveal itself over time, progressively. The first indications may be minor cracking requiring superficial repair, whereas the underlying problem requires far greater expenditure, assuming it to be capable of correction. If the superficial cracking should put the owner on notice of inquiry as to its cause and if reasonable inquiry would have revealed the cause, the underlying defect has become manifest, even though it did not in fact become known to the owner at that time…”

59. That is, the underlying defect had become manifest to the applicants by the time they purchased their property. Despite this, they did not promptly undertake further investigation suggested in the property report, nor did they take necessary actions that might have prevented further water damage to their property in late 2021.

60. In Liang v Marsh [2011] NSWLEC 1026 (Liang), Commissioner Fakes wrote at [32]-[34]:

“[32] An important question to be asked is how much damage to what is now the applicants' property has been caused by the tree in the time they have owned the property.

[33] The test requires the damage to be damage caused to the applicant's property whilst owned by the applicant. I am not satisfied from the evidence that the applicants have proved on the balance of probability (that being the relevant test), that the displacement of the fence and the retaining wall and the damage to the tiles have happened in that brief time. It is more likely that the majority of the damage occurred when the property did not belong to the applicants and the property was in that condition when the applicants purchased it.

[34] It is reasonable for me to assume that the applicants paid 'market value' for their property. Such a sale requires a willing buyer and a willing seller with both parties fully aware of all factors that affect the value of the property. This is a case of caveat emptor or let the buyer beware. In this case, the tiles are highly likely to have been already cracked, the fence was already displaced, the retaining wall post was already leaning and the Blue Gum was clearly well established. At best, 1/12 of the damage to the retaining wall and the fence has occurred during the time the property has been owned by the applicants.”

61. In Liang, damage to a retaining wall may have increased during the brief time the applicant owned the property. In the current proceedings, I find that, on the balance of probabilities, the problem arising from any damage caused by roots existed at the time of purchase. The applicants have suffered no loss.

Preventing damage

62. To prevent further damage, Mr Dunlop recommended removing both trees. Fig trees have vigorous and extensive root systems, as seen by the presence of fig roots between pits P2 and P3 on the applicants’ property. A root barrier might prevent damage for a period, but it would need to be placed along the boundary if it is to prevent further damage to the applicants’ property. That would remove structural roots, leaving the trees prone to windthrow failure. In the circumstances, tree removal seems the only practical way to prevent damage from fig tree roots.

63. Mr Brown provided costings for replacing or relining the applicants’ stormwater pipes. Both Mr Brown and Mr Dunlop pondered the need for poisoning roots found in the pipes, and whether, or for how long, remaining root sections would plug any pipe cracks or openings through which they had grown. Regardless of the risk of future damage, Mr Brown found that the pipes need relining or replacement due to their current condition. Due to my findings above, the respondent is not responsible for the cost of any works to the applicants’ pipes – this is a matter that concerns only the applicants, so does not require consideration here, nor orders from the Court. The trees will be removed, so will not cause further damage. The applicants are responsible for dealing with any roots on their property.

Conclusion

64. I find that:

• In April 2021 when Mr and Mrs Somuncu purchased their property, the property damage for which they now claim compensation largely existed. The property’s condition was reflected in the price they paid. They cannot now claim compensation for loss that occurred prior to their ownership.

• Both trees have damaged the paling fence on the common boundary.

• The condition of the Somuncus’ stormwater pipes has deteriorated even where there are no signs of tree roots. In the absence of tree roots, drainage pipes around the applicants’ pool would still not be functioning properly. Their condition has likely allowed roots to enter the pipes. Tree roots are a minor causal factor of damage to the Somuncus’ property.

• The contribution of tree roots to property damage could have been prevented by reasonable property maintenance.

• Flooding occurred to the Somuncus’ property during heavy rain in late 2021 due to pre-existing problems with the drainage system. Higher-than-average rainfall brought the pre-existing condition to their attention.

• Ms McDowell initially carried out works on the trees as requested by Mr Somuncu. He did not ask her to remove the trees until late 2021.

• Any damage caused by tree roots to the Somuncus’ property has not increased materially during the period they have owned it.

• Frequent or periodic flooding of the Somuncus’ property since late 2021 has continued because they have not fixed the drainage system, which was in this condition when they purchased it. There was no reason in late 2021 for Ms McDowell to fix the applicants’ drainage system, so she is not responsible for any flooding or water damage since then.

• On the basis of the above, no compensation will be ordered. Removal of both trees is required to prevent further damage. Orders will be made for the fence to be replaced.

65. Prior to the hearing, Ms McDowell filed alternative orders via Short Minutes of Order. Essentially similar to the earlier consent orders she put to the Somuncus, they are:

“1. The application to remove the two trees is upheld.

2. The application for compensation is dismissed.

3. The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to ground level and to poison the stump within 60 days of the date of these Orders.

4. The Respondent is to pay for the removal costs of the tree.

5. The Applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the Applicants and Respondent. The replacement fence must be timber lapped and capped, with a height of 1.8 metres. These works are to be completed within 90 days of the date that the trees are removed, with the half the cost paid by the Applicants, and half the cost paid by the Respondent.

6. The Applicants and the Respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding tree removal and fencing orders.”

66. These orders are in line with my findings and conclusions above.

Orders

67. The Court orders:

1. The application to remove the two trees is upheld.

2. The application for compensation is dismissed.

3. The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the two fig trees to ground level and to poison their stumps within 60 days of the date of these Orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The respondent is to give the applicants 2 days’ notice of the works in (3).

5. The applicants are to engage a fencing contractor to carry out works to replace the boundary fence shared by the applicants and the respondent. The replacement fence must be timber lapped and capped, with a height of 1.8 metres. These works are to be completed within 90 days of the date that the trees are removed, with the half the cost paid by the applicants and half the cost paid by the respondent.

1. The applicants are to give the respondent 2 days’ notice of the works in (5).

2. The applicants and the respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding tree removal and fencing orders.

3. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 March 2024