Song v Hackney

[2016] NSWLEC 1512

Land and Environment Court

New South Wales

Medium Neutral Citation:	Song v Hackney [2016] NSWLEC 1512
Hearing dates:	24 October 2016
Date of orders:	02 November 2016
Decision date:	02 November 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; sewer blockage; compensation; adequacy of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Olivia Yan Song (Applicant) Michelle Hackney (Respondent)
Representation:	Applicant: Ms V McWilliam (Barrister) Respondent: Mr D Williams (Solicitor)     Solicitors: Applicant: Juris Cor Legal Respondent: Whitehead Cooper Williams
File Number(s):	199993 of 2016

Judgment

1. COMMISSIONER: The applicant, Ms Song, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two Liquidambar trees and the payment of $63,729.20 for losses arising from, or incidental to, damage to her property allegedly caused by the trees. The damage is said to be damage to the applicant’s sewer pipes. Ms Song is also concerned that if the trees are not removed, then it is very likely that roots from the trees will infiltrate the pipes and cause them to burst again.

2. The trees, the subject of the application, are located on Ms Hackney’s property close to the common boundary. Tree 1 is growing in the front garden; Tree 2 was, until September 2016, growing in the back garden approximately 10m to the east of the applicant’s dwelling. In July 2016 the respondent obtained permission from The Hills Shire Council to remove Tree 2 (on the basis it had included bark between the stems); council refused permission to remove Tree 1 but permitted pruning of no more than 15% of the canopy. Tree 2 has been cut to about 1m above ground; I was informed that the stump was poisoned.

3. Apart from the two Liquidambars, there are a number of other trees and shrubs on the respondent’s property including a large Cedrus deodara (Himalayan Cedar) in the front garden. There are also trees and shrubs on the applicant’s property including a mature Juniperus chinensis (Chinese Juniper) close to the common boundary, sewer, and several metres to the southeast of Tree 1. There is also a Viburnum hedge along the applicant’s front fence, parallel to the sewer main. ‘Streetview’ and ‘Nearmap’ images from 2014 included in the respondent’s arborist’s (Mr Mark Hartley) report (Exhibit 3) show there were a number of other trees and shrubs including a Jacaranda, semi-mature Norfolk Island Pine, and Oleanders in the applicant’s front garden which have since been removed.

4. The applicant’s sewer runs along the north-eastern side of her dwelling from southeast to northwest where it joins Sydney Water’s sewer main which runs beneath the front gardens of the parties’ properties. The respondent’s property is the adjoining property to the north. A large diameter manhole providing access to the sewer main is located within the applicant’s front garden, within about 2m of the base of Tree 1.

Relevant background and evidence

5. In January 2013 the applicant finalised the purchase of her Castle Hill property. In September 2013 she became aware of problems with the sewer system. Shortly after, a plumber attended the property and observed roots in a section of the sewer pipes towards the south-eastern end of the system.

6. Given the extent of the blockage and associated flooding, the applicant engaged The Daily Plumber to carry out emergency repairs. These included the replacement of a section of original terracotta pipes and previously installed PVC sewer pipe with new PVC and the installation of a new inspection point towards the south-eastern end of the dwelling. The new pipes were joined into the remaining sections of terracotta pipes [upstream and downstream]. The cost of this work was $16,994.00.

7. Mr Jackson Shields was one of the plumbers who carried out the work in 2013; his affidavit is Exhibit C. In oral evidence he stated that the original pipes had collapsed and were choked with roots; in his opinion, this may have occurred over a five to ten year period. Mr Shields confirmed that about 2m of pipe was replaced. After the initial blockage was cleared, the remaining section [believed to be the downstream section] was cleared with high pressure water and inspected with CCTV. The inspection indicated roots at every collar of the remaining earthenware pipes. During the hearing, Ms Song stated that she wasn’t informed of the downstream root incursions discovered in 2013.

8. The applicant states in her affidavit (Exhibit B) that she spoke to her neighbours in June 2014 about a number of matters including potential real estate projects in the area and also about the problems she had with tree roots in her sewer in 2013. In their affidavits (Exhibits 2 and 1 respectively), neither Ms Telfer (Ms Hackney’s mother) who resides in Ms Hackney’s dwelling nor Ms Hackney have any recollection of a conversation about tree roots in 2014; they state they first became aware of the issue in 2015 after the surcharge from the sewer described below.

9. On 13 April 2015 Ms Song found the sewer system blocked again. Ms Song states in her affidavit that on 14 April 2015 she informed Ms Telfer (and subsequently Ms Hackney) that the pipes had burst and that it appeared that the damage had been caused by the “trees in your backyard”. The following day sewage was surcharging onto the street through the manhole in the front yard. Sydney Water attended the site on 15 April 2015. The Sydney Water activity statement (Exhibit D) describes the cause as ‘roots’.

10. Ms Song engaged The Daily Plumber to replace the remaining section of terracotta pipe downstream of the previously replaced section with PVC. The pipes were diverted away from Tree 1 and a new sewer main connection device was installed further away from the tree. Mr Shields was one of the plumbers who carried out the work. He states in his affidavit that the terracotta pipes were cracked “as a result of tree roots entering them”.

11. The replacement of the pipes necessitated the removal and replacement of a concrete path. The tax invoices for the 2015 work comprise $19,800 for the replacement of the sewer and $10,000 for the new sewer main connection and replacement of the concrete path; a total of $29,800.00.

12. Correspondence between the parties’ legal representatives ensued. In May 2015 the parties attended mediation; it is assumed that the roots and the sewer were discussed. It seems that the parties did not reach an agreement.

13. In April 2016, Ms Song’s solicitor engaged an arborist, Mr Jim McArdle, to provide an Arboricultural Assessment Report specifically to assess three trees for their condition and retention value (Aims p4 McArdle report in exhibit A). The three trees assessed were the two Liquidambars on the respondent’s property and a Juniperus chinensis (Juniper) on the applicant’s property.

14. Mr McArdle carried out what he describes as “root mapping” however there is no ‘map’ or cross section/ diagram indicating where and what roots were found; rather, a difficult to decipher table of locations, distances, depth and diameter of roots is included in the report. For what it is worth, the table indicates root diameters of 10 – 150mm. During the on-site hearing, Mr McArdle indicated the location of the trenches he excavated in order to “map” the roots. Each trench was located near each of the three trees but not, in the case of the Liquidambar at the rear, necessarily close to the sewer. Roots from each of the trenches were collected and sent to the Royal Botanic Gardens (RBG) Sydney for identification. It is not clear as to whether the roots came from within or near the excavations carried out by the plumbers or the trenches dug by Mr McArdle; no root samples were taken from within any of the pipes. The RBG confirmed that the sampled roots came from the two Liquidambars and the Juniper. In oral evidence, Mr McArdle stated that the applicant gave him a piece of PVC pipe (from an older repair) in which there were roots; while he did not have the roots identified he considered them to be from a Liquidambar. Mr McArdle’s report recommends the removal of the two Liquidambars on the basis of “opportunistic issues”. For some unknown reason, he also refers to managing the work in accordance with AS4790: 2009 Protection of Trees on Construction Sites and AS4373:2007 Pruning of Amenity Trees.

15. In late May 2016 Mr Shields attended the property and, for no charge, cleared the pipes upstream of the original 2013 repairs and inspected the pipes using CCTV. The upstream part of the sewer system extends around the south-eastern corner of the house, under a tiled verandah and into the laundry. Photographs included on a memory stick show fine roots in sections of the original terracotta pipes beneath the tiled floor. In oral evidence Mr Shields stated that the waste water system from the shower, which adjoins the section of pipe that was repaired in 2013, is also blocked by roots.

16. Mr Shields prepared a quote for a two stage rectification of the remaining sections of the sewer/waste water system. Stage 1 – the laundry is quoted at $8979.00 plus GST (= $9858.90); stage 2 – shower is quoted at $6453.00 plus GST (= $7098.30) – therefore a total of $16,957.00 for the remaining rectification.

17. In Late August 2016, Mr Williams, the respondent’s solicitor, engaged Mr Mark Hartley, Consulting Arborist, to inspect the respondent’s property and provide a report on a number of questions relating to the likelihood of the respondent’s trees breaking or crushing the applicant’s sewer pipes, the likelihood of roots entering an already damaged pipe, and the steps involved in identifying the origin of any roots. Mr Hartley was also asked to review the evidence served by both parties including Mr McArdle’s report.

18. On the basis of the photographic evidence, both stills and video footage taken during the replacement of the sewer and of the subsequent blockage, and consideration of relevant literature, Mr Hartley opines that if the pipes were broken and leaked there is a high likelihood that the roots of any plants, being opportunistic, would eventually enter the pipe. In his opinion it is conceivable that roots from one or more of the Liquidambars may have entered the pipes however he also considers that the roots of other nearby woody plants (or even grasses), including those on the applicant’s property, may have also entered the pipes. As to whether the roots of the trees caused the initial damage, Mr Hartley’s assessment of the available evidence and the literature would suggest this is improbable and he provides a list of multiple other possible causes. These other possible causes include soil movement, changes in bedding material, wear and tear, and point loads.

19. In regards to the identification of the source of the roots, Mr Hartley notes the two most common methods of identification are microscopic examination of morphological and anatomical structures, and DNA analysis. He states that whilst he accepts that the roots collected by Mr McArdle from near the sewer have been accurately identified to the level of genus, this does not mean that these are from the same woody plant/s that entered the pipes and caused the blockage. Similarly, while roots from the respondent’s Liquidambars have been found on the applicant’s property, it does not mean they are the cause of the blockage however Mr Hartley accepts it is possible that roots from these trees may have entered the pipes.

20. Mr Hartley reviews Mr McArdle’s report and identifies a number of deficiencies, inconsistencies and confusing statements. I concur with his findings.

21. During the hearing, on the basis of Mr Shield’s opinion that the roots had most likely been in the system for 5-10 years, the applicant does not press reimbursement for the works carried out in 2013. However, Ms McWilliam on behalf of Ms Song submits that the respondent should contribute 50% of the cost of the works in 2015 and the quoted amount of the proposed future works. This amounts to a contribution of $23,378.50.

22. Mr Williams, Ms Hackney’s solicitor rejects this claim on the basis that Ms Hackney was not given adequate opportunity to investigate the cause of the problem or obtain independent advice of appropriate action. Ms Hackney relies on the evidence of her arborist, Mr Hartley.

Jurisdiction

23. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(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.

24. Injury is not pressed.

25. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”. In Robson v Leischke [2008] NSWLEC 152 at [176]-[189], Preston CJ determined amongst other things that a tree the subject of an application need only be a cause of the damage in order to engage the Court’s jurisdiction.

Findings

26. I concur with Mr Hartley that roots from the two Liquidambars may have entered the applicant’s sewer and contributed to the blockages. As the trees are a probable cause of damage, the jurisdictional test in s 10(2) is satisfied and the Court’s powers under s 9 of the Trees Act to consider what if any orders should be made are engaged.

27. Before making orders, the Court must consider relevant matters under s 12 of the Act. In this matter, s 12(h) is most relevant – that is, anything other than the tree that may have contributed to the damage, any acts or omissions by the applicant, and steps taken by either party to rectify or prevent the damage.

28. I am prepared to accept that roots from one or more of the other plants growing on each of the parties’ properties may also have grown into the pipes. I am not persuaded by Mr McArdle’s evidence that the woody roots found in the trenches he dug, or in the trenches dug by the plumbers, were the same as the roots within the sewer. It seems self-evident that if a trench is dug close to a large tree then the roots found in that trench are likely to be from that tree. Mr Hartley’s report provides a cogent explanation of interactions between roots and sewer pipes and other possible causes of damage to pipes which may have provided access for root incursion. The fact remains that the actual roots within the sewer were not, and have not been, identified.

29. There is competing opinion as to when Ms Song notified Ms Hackney of the problems with the sewer. While Ms Song contends that in 2014 she told Ms Hackney that she’d had problems with tree roots in her sewer, which the plumber informed Ms Song had come from the respondent’s trees, Ms Song provided no corroboratory material, such as invoices, to explain the problem. Similarly, if it is true that in 2013 Ms Song was not made aware of the downstream incursions, then the respondent could not have been aware of the problem. On this basis, I am not satisfied that the respondent should make any contribution to the works carried out in 2015. I consider the starting point for consideration of any possible contribution should be post the 2015 surcharge event as this appears to have initiated the mediation.

30. The question remains as to whether the respondent should make any contribution towards the works quoted by Mr Shields in 2016.

31. From Mr Shields’ evidence given on site, it appears as though the extent of the 2013 blockage was such that Mr Shields considered the blockage to have occurred over a 5-10 year period; that is before the applicant purchased the property. It also seems that some repairs had been carried out prior to Ms Song’s purchase of the property, evidenced by a section of PVC pipe removed from near the site of the 2013 blockage. Further, the clearing and repair of the 2013 blockage involved replacing a small section of old pipe and connecting the new pipe upstream into two existing terracotta pipes and downstream into the existing terracotta pipe. While there is nothing to suggest that the new joins have failed, there is no evidence that the upstream pipes, the subject of the 2016 claim, were free from roots at that time. It could therefore be argued that insufficient action was undertaken in 2013 to rectify a pre-existing problem. As previously stated, the roots in the remaining section of sewer have not been identified. If they are from Tree 2, the closest Liquidambar, that tree has been removed and cannot cause future blockages.

32. Apart from the matter of compensation, the applicants’ concerns go to future damage. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. In Robson v Leischke at [200] the ‘near future’ is considered in the terms of imminent/ real appreciable probability of irreparable damage.

33. Given that Tree 2 has been removed and the roots poisoned, it cannot cause any future damage to the applicant’s sewer. While Tree 1 remains and is close to the large inspection/access point to the Sydney Water sewer main, and may have been a cause of the past damage, the applicant’s sewer is new and has been diverted away from the tree. Assuming the sewer has been installed to industry standards and on the basis of the warranty provided by the plumber, there is no reason to believe that the roots from this tree will, in the period of 12 months considered by the Court to be the ‘near future’ cause damage to the applicant’s sewer. Therefore, at this stage, there is insufficient reason to order the removal of that tree on the basis of a hypothetical possibility that future damage may occur.

34. On balance, it would appear that there is insufficient evidence to require Ms Hackney to make any contribution to the replacement of the remaining section of sewer/ waste water pipe.

35. As a consequence, the Orders of the Court are:

1. The application is dismissed.

2. The exhibits except A are returned.

___________________________

Judy Fakes

Acting Commissioner of the Court

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Decision last updated: 03 November 2016