Venaline Pty Ltd v Sunderland [2009] NSWLEC 1301

Land and Environment Court of New South Wales

CITATION : Venaline Pty Ltd v Sunderland [2009] NSWLEC 1301

APPLICANT Venaline Pty Ltd PARTIES : RESPONDENTS R Sunderland

FILE NUMBER(S) : 20265 of 2009

CORAM: Moore SC - Dixon C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 5 August 2009

EX TEMPORE JUDGMENT DATE : 5 August 2009

APPLICANT Mr T O'Brien, agent LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC DIXON C THYER AC

5 August 2009

20265 of 2009 Venaline Pty Ltd v Sunderland

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: On 25 Atkins Street, Rydalmere grows a large Hills Fig (the fig) about 1 m from the rear boundary of the property. The fig is some 20 to 25 m in height and has a canopy spread of a similar size. There is an extensive root system able to be seen on the ground in the vicinity of the fig on the property where it is located, on the property immediately to the north and on the property to the east that is owned by the applicant in these proceedings.

2 It is important to note, for the conclusions we have subsequently reached, that the respondents do not oppose removal of the tree and have, in the past, sought and been refused permission by the local council for this purpose.

3 Mr O'Brien, who spoke on behalf of the company that owns the property and is the applicant in the proceedings, makes a claim that is in two parts. With respect to the tree, the applicant either seeks removal of the tree or the installation of a root barrier to prevent future damage to the property owned by the company and, with respect to past damage to this property, seeks compensation of slightly over $100,000 to permit rectification of a number of aspects which are said to be occasioned by roots causing damage to the property.

4 There are three relevant elements of damage claimed: the first is damage to the garage; the second is damage to a rear extension to the house which extension was erected some 30 years or so ago; and the third is damage caused by roots intruding into the sewer pipe and damaging the pipe and blocking it.

5 The compensation claims also include reimbursement for a number of pipe cleanings conducted by plumbers since 2003. The applicant purchased the property in late 2000.

6 We turn first to the question of damage to the garage. The garage is a fibro structure that is significantly dilapidated. The gutters on both the northern and southern sides are rusted out and are dripping water into the vicinity of the slab upon which the garage is erected. There is a crack down the centre of the main slab of the garage running in an east/west direction, generally in line with the trunk of the tree. No root has been exposed in the vicinity of the crack and the respondents have given evidence that they undertook excavation at the rear of the garage – digging a hole some 300 mm x 300 mm generally at a point that is consistent with the line of the crack. No root was exposed during that excavation.

7 On the eastern side of the garage, between the concrete wheel tracks leading to the garage, there is no sign of lift or heave in the dirt, in line with the crack in the slab. The crack in the slab is located at point that would be on either side of the wheels of any vehicle entering the garage. We cannot be satisfied that the garage has been damaged by the roots of the tree thus satisfying section 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

8 We have reached this conclusion for the following reasons: o First, the water coming from the roof may well have caused the soil on the sides of the garage to become moist thus permitting a plasticised soil being squeezed out by the pressure of the wheels on the path that described above; o Second, given the age of the premises and what we have elsewhere discovered about construction methodology associated with the house, we have no basis upon which we could conceivably conclude that the slab has been properly constructed; and o Finally, there is no evidence of a root running along the line of the crack and, indeed, the absence of heave in the soil between the wheel tracks is an indication of a contrary position. 9 As a consequence, the claim with respect to the garage is dismissed, as we cannot be satisfied that we have jurisdiction to entertain it.

10 We now turn to the question of the two rooms at the rear of the premises. These are constructed on a concrete slab that was installed some 30 years or so ago. A hole has been cut in the concrete to slab along the line of the cracking in it and a report prepared by Mr Hartley, an arborist, in September 2008. We have had this section of the slab removed for our inspection today. The hole cut in the slab showed a number of things: o it showed several large roots (which are clearly roots from the fig) that were removed and analysed confirming that diagnosis. o Second, there was no membrane installed under the slab at the time it was constructed; and o third, the reinforcing steel that was put in at the time the slab was installed was simply laid on the ground and was not supported by bar chairs that would have permitted the reinforcing to act in a proper and effective fashion in strengthening the slab. 11 The damage to the house that has been shown is threefold. First is the cracking of the slab along the lines of the root; second is the lifting of the skirting boards around the perimeter of the room; and, finally, separation at at least one point of the wall of the extension from a wall of the main house as it existed prior to the extension being constructed.

12 There are a number of matters that are relevant for us to take into account in this regard. First, the owner of the property had no pre-purchase inspection undertaken at the time of acquiring the property. Second, the construction of the slab is (even allowing for the fact that was undertaken 30 years ago) what can only be described as shoddy work, built to an unacceptable standard of building practice even compared to that which applied at the end of the 1970s. The reinforcing that had been placed on the ground below the slab was entirely ineffectual in providing any benefit by reinforcing and strengthening of the slab.

13 We are satisfied, nonetheless, the damage has been caused by the roots of the tree and therefore that the jurisdictional pre-requisite in section 10(2)(a) of the Act (that the tree has caused damage to the applicant's property is satisfied) and we thus have jurisdiction to deal with the matter. However, it is then necessary for us to turn to what (as a matter of discretion), if anything, we should order.

14 There are a number of matters that are relevant here. The first is that the earliest that the applicant drew the tree owners' attention of the problem was in 2006 but the property has been owned by the company (as earlier noted) since late 2000. This is a matter relevant to apportionment of costs of any order in conjunction with all of the matters that I have earlier described about the shoddy and unacceptable standard of construction, that being a matter that is entirely outside the control of the tree owners. We do not consider, in light of the delay and the reasons why the slab construction is defective, that we should order any rectification costs against the tree owners.

15 We have considered whether or not we should order removal of the tree. The tree is a significant one that makes a contribution to the local landscape. We are satisfied that, at least for the foreseeable future, future damage to the applicant's property can be rectified by the installation of a root barrier to be installed to a depth of 900 mm from a point along the rear fence running diagonally across the site to a point at the outer edge of the southern wheel track of the driveway. A diagram, from a survey plan tendered by the tree owners as evidence in these proceedings, will be marked by us showing the line of construction of the root barrier. The diagram will form part of the orders of the Court.

16 The root barrier is to be installed within six months of the date of the hearing. The respondent tree owners are to pay 50% of the cost of the root barrier within 90 days of the date of a receipted account being served on them after the completion of the works. If a receipted account is not served on the tree owners within eight months of the date of this hearing the order for reimbursement lapses. The works for installation of the root barrier to be supervised by an AQF Level III arborist.

17 We note, at this point in the decision, that nothing in this decision concerning the installation of the root barrier prevents the parties making some further application to the council, which application, if granted, would remove the need for the carrying out of the root barrier works that we will order.

18 We turn now to the question of the sewer. The sewer is constructed partly of PVC at the point of connection to the house plumbing and partly downstream, towards the main sewer, from terracotta pipes. There have obviously been, from the evidence of the applicant, root intrusions into the pipe from September 2003 onwards. No prior notice as been given (until the commencement of these proceedings) to the owners of the tree of the intrusion of the roots of their tree into the pipe. As a consequenc, two things are relevant: + The first is that there has been no notice to the owners of the tree; and + The second is that, although there have been a number of occasions when the roots have blocked the pipe since 2003, the applicant has taken no steps to abate the damage to the pipe by renewing the sewer line but has been content to rely on repeated interventions by plumbers to keep the line clean. 19 We are satisfied that the tree owners' trees roots have caused damage to the applicant's sewer pipe and thus the Court has jurisdiction to consider the claim.

20 However, there are a number of matters to be taken into account in deciding whether we should make any order.

21 The first is that the lack of prior notice and the lack of opportunity to rectify the damage means that there is no basis upon which we could require the tree owners to make any contribution to the costs of plumbing intervention at any point of time prior to today.

22 Second, despite the fact that there has been an awareness of the problem for at least six years, there has been no work undertaken by the applicant to prevent future damage by the replacement of the pipe with a PVC pipe that would not be impacted by the true roots.

23 Third, the pipes are terracotta pipes of an uncertain age (and we note here that, although Mr O'Brien suggested we should conclude that the pipes have been replaced with new terracotta pipes at some time in the past, we have no evidence upon which we could satisfactorily draw such a conclusion). The fact is they are terracotta pipes with all the attendant difficulties of ageing of joints between them and the fact that those joints ageing are susceptible to root invasion.

24 We have turned then to consider what should be done. It is appropriate to require that the terracotta pipes be replaced with PVC pipes from the point of present PVC connection to the point where the house sewer line joins the main sewer owned by Sydney Water. It is not appropriate for us to require that the total cost of this replacement be met by the owners of the tree as we are satisfied that the inactivity of the owner of the property since 2003 is likely to be a significant contributing factor to the present state of the pipes.

25 We are satisfied, however, that there should be some minor order for compensation, it will be on a similar time basis to that which has been made with respect to the installation of the root barrier with a similar self executing lapsing provision if the receipted account is not provided within the relevant period of time. The contribution that the tree owners of the are to make of the cost of rectification of the plumbing is limited to 25% of the receipted account served upon them.

26 The orders of the Court therefore are: 1. The applicant is to install a root barrier to a depth of 900 mm from a point along the rear fence running diagonally across the site to a point at the outer edge of the southern wheel track of the driveway as marked on the diagram that is Annexure A to these orders; 2. The root barrier in (1) is to be installed within six months of the date of these orders; 3. The respondents are to pay 50% of the cost of the root barrier in (1) within 90 days of the date of a receipted account being served on them after the completion of the works; 4. If a receipted account is not served on the respondents pursuant to (3) within eight months of the date of these orders, order (3) for reimbursement lapses; 5. The works for installation of the root barrier is to be supervised by an AQF Level III arborist with appropriate insurances; 6. The applicant is to replace the terracotta pipes with PVC pipes from the point of present PVC connection to the point where the house sewer line joins the main sewer owned by Sydney Water; 7. The PVC pipes are to be installed within six months of the date of these orders; 8. The respondents are to pay 25% of the cost of the installation of the PVC pipes within 90 days of the date of a receipted account being served on them after the completion of the works; and 9. If a receipted account pursuant to (8) is not served on the respondents within eight months of the date of these orders, order (8) for reimbursement lapses.

Tim Moore Senior Commissioner

Susan Dixon Commissioner of the Court

Peter Thyer Acting Commissioner of the Court ANNEXURE A

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