Land and Environment Court New South Wales Medium Neutral Citation: Sabellano v Velevski [2022] NSWLEC 1471 Hearing dates: 26 May 2022 Date of orders: 8 September 2022 Decision date: 08 September 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) Within 28 days of the date of these orders, the respondents shall pay the applicants $10,176.00 by E.F.T. or Bank Cheque, as compensation for plumbing damage. (2) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Lemon Scented Gum and the Spotted Gum to near ground level and poison their stumps. These works shall be undertaken by AQF level 3 arborists, with all appropriate insurances. (3) Within 90 days of the date of these orders, the existing boundary fence between the properties shall be replaced with a green Colorbond fence, matching the existing green Colorbond fence on the applicants' land. In the first instance, the respondents shall pay the fencing contractor. (4) To facilitate the works in Order 3, each party shall procure up to two quotations from licenced fencers or landscapers with all appropriate insurances. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen contractor satisfying the licencing and insurance requirements of the said order. (5) Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicants with a copy of an itemised paid invoice for the fencing works. (6) Within 7 days after receipt of the paid invoice in Order 5, the applicants shall reimburse the respondents by E.F.T. or Bank Cheque, for a quantum of 50% of the cheapest of the acceptable quotations from licenced, insured contractors, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation. (7) Where access is required to complete these works, or for the purpose of gaining quotations, the applicants shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works. (8) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (9) All works shall be completed during normal work hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property - apprehension of further damage, and risk of injury - tree removal and compensation sought Legislation Cited: Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979 Limitations Act 1969 Native Vegetation Act 2003 Trees (Disputes Between Neighbours) Act 2006 s7, 8, 9, 10, 12 Cases Cited: Moroney v John [2008] NSWLEC 32 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4790:2009 - Protection of Trees on Development Sites Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Category: Principal judgment Parties: Giselo Sabellano (First Applicant) Gertrudes Sabellano (Second Applicant) Saso Velevski (First Respondent) Mira Velevska (Second Respondent) Representation: G Matthews, Solicitor (Applicants) S Velevski (Self-represented)(First Respondent) M Velevska (Self-represented) (Second Respondent) Solicitors: Matthews & Co Lawyers (Applicants) File Number(s): 2022/63069 Publication restriction: No Judgment 1. COMMISSIONER: Mr and Mrs Sabellano, the applicants, and Mr Velevski and Ms Velevska, the respondents, share a boundary between their properties in Ambarvale, in the Campbelltown Local Government Area (LGA). The respondents' rear boundary is the front section of the applicants' west side boundary, while the two properties south of the respondents' also share a rear boundary with the applicants' west side boundary. The Sabellano's live at their property, while Mr Velevski and Ms Velevska have leased their dwelling for many years, and they noted rarely inspecting or visiting their property. 2. The respondents have two large trees on their land, located close to the common boundary. One is a Corymbia citriodora (Lemon Scented Gum) and the second is a Corymbia maculata (Spotted Gum). The applicants' driveway is within two metres of and almost parallel with the shared boundary, and their sewer pipe is located under the eastern side of the driveway. 3. The applicants claim that tree roots have accessed their sewer pipes over many years and caused damage in various locations. They initially contacted the respondents in 2004 but received no response. The Sabellano's application included copies of many receipts for clearing of roots from sewer since 2010, for pipe replacement in 2013, and for subsequent root clearance by plumber or by hired root clearing 'eel' at least annually up until 2018. It also included 'pipecam' footage showing recent root growth in the pipes near the toilet, which has since been rectified. 4. The applicants recommenced communication in February 2021 with an attempt to organise mediation under the guidance of a Community Justice Centre (CJC). Copies of letters from the CJC note that no reply was received. Subsequent letters to the respondents from the Sabellano's, and from their Solicitor, Mr Matthews, also went unanswered. Ms Velevska said the respondents were unaware of this communication. There is no reason to disbelieve her, but the applicants nonetheless received no response. 5. As a consequence, Mr and Mrs Sabellano have made an application under s 7 of Pt 2 of the Trees (Disputes Between Neighbours Act) 2006 (the Trees Act) to remedy damage caused to sewer pipes by roots emanating from trees in a neighbouring property, to prevent damage that they are likely to cause in the near future, and to remove the risk of injury posed by the trees. The onsite hearing 1. The hearing was conducted on 26 May 2022 with both parties, and the applicants' Solicitor, Mr Matthews, in attendance. 2. Mr and Mrs Sabellano initially sought the following orders from the Court: 1. The removal of the two gum trees and that the two stumps be poisoned, in the alternative the removal of the trees' roots, at the respondents' cost. 2. The Respondents shall pay the applicants compensation in the total amount of $7,479.00. 3. The Respondents shall remove and replace the timber portion of the dividing fence with a Colourbond fence (extending existing green fence), at the Respondents' cost. 4. Legal costs. Jurisdictional requirements 1. With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 2. The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act which states: 1. The Court must not make an order under this Part unless it is satisfied: 1. that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and 2. if the requirement to give notice has not been waived, that the Applicant has given notice of the application in accordance with section 8. 1. The applicants have provided evidence satisfying the requirement under s 8(1)(a) of the Trees Act: to serve notice to the respondent more than 21 days prior to the proceedings. 2. They have also satisfied s 10(1)(a) of the Trees Act: to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Copies of correspondence display attempts to resolve the dispute directly with the respondents over a protracted period, through their Solicitor, and with recourse to a CJC for assistance. 3. The next major test that is posed, by s 10(2) of the Trees Act, which 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. 1. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act. 2. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592 (Yang), as a rule of thumb, the 'near future' with respect to damage is deemed to be a period of 12 months from the date of the determination. Damage caused by the trees 1. Conclusive evidence has been provided, particularly the flow of receipts, that confirm a litany of sewer pipe incursion by tree roots over almost twenty years. Plumbing receipts itemise extensive roots clearing from the sewer pipe in 2010, with the primary blockage found near the front of the driveway, and for replacement of terracotta pipes with PVC pipes from the carport to the front of the property in 2013. 2. Pipe clearance was required for ongoing root blockages, with receipts supplied for 'eel' hire from Kennards on seven occasions between November 2015 and November 2018. I see no reason not to accept these receipts as evidence of past sewer pipe clearance. 3. In examining Google Earth photographs whilst preparing for the hearing, Ms Velevska noted the presence of other substantial trees, since removed, close to the applicants' west side boundary further south of the two gum trees. The Sabellano's said these neighbours had agreed to remove these trees because of their plumbing problems, and they estimated that the removal would have occurred more than four years ago. One large and one small residual stump remained visible, and from the appearance of disintegration of their wood, this estimate of four years seems reasonable. 4. Given the prior presence of these trees, and their location closer to the house plumbing than the gum trees, it is possible that these additional two trees contributed to historical sewer pipe blockages. When previously alive, they may have initially entered cracks and gaps in deteriorating pipes and pipe junctions, and thus enhanced a favourable environment for roots in terms of moisture, oxygen and nutrients which the gum trees may have also exploited. I am satisfied, however, that these additional two trees are long dead, and have thus not contributed to more recent root incursion. 5. In April 2022, the Sabellano's suffered a sewer pipe blockage, which was located by 'pipecam' in the terracotta sewer pipe running underneath their living room. This required significant repairs including removal of the toilet and relining of damaged pipes, at a total cost of $13,046. A series of photos displaying the blockage and the stages of the works was included in an affidavit of Gertrudes Sabellano, dated 2 May 2022. 6. Noting that the root systems of the gum trees would likely extend into this location, the history of plumbing issues, and the absence of other trees in relatively close proximity, I am satisfied that the gum trees are a cause of this 2022 sewer pipe damage, and therefore s 10(2)(a) of the Trees Act is engaged. Considering the location of the 2010 damage that resulted in sewer pipe replacement in 2013, very close to the gum trees, but far from the trees in neighbouring properties, I am also satisfied that the gum trees are a cause of this 2010 damage. Risk of injury 1. The applicants noted various dead branches on the ground and in the tree, and they spoke of an incident where a failed branch nearly missed a pedestrian on the driveway. 2. While branches may shed from trees, particularly in stormy conditions, I am not satisfied that either tree is a risk of injury above a low risk, and a low risk is considered acceptable. 3. Though s 10(2)(b) of the Trees Act is therefore not met for risk of injury, satisfaction of one condition of s 10(2) is sufficient to engage the legislation. If the Court's jurisdiction is engaged, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Trees Act. 4. The respondents provided an arborist report, dated 14 April 2022, by Tarek Hussein, who holds an AQF level 5 qualification appropriate for a consulting arborist. The Lemon Scented Gum was assessed as about 18 metres (m) tall, with an 18m canopy spread and trunk diameter at breast height (DBH) of 1.3m. The adjacent Spotted Gum was deemed about 18m tall, 17m canopy spread and trunk diameter at breast height (DBH) of 0.85m. 5. Both trees were recorded as having Very Good health, structure and form, having a long Useful Life Expectancy (ULE) with low risk, and providing Very High Landscape Significance. 6. The respondents questioned the report, suggesting it was not fit for purpose. While it is somewhat formulaic and not necessarily customised for this application, it is comprehensive, accurate and useful, and it provides a sound coverage of the trees' significant contributions to their immediate environment and the local area, many of which are considered in s 12 of the Trees Act. Discretionary matters – s 12 1. In making an order, the Court considers relevant matters in s 12 of the Trees Act. 1. The tree/s are located in the respondents' property close to the common boundary (s 12(a)); 2. Pruning or removal of the tree/s would require consent from Council under the Environmental Planning and Assessment Act 1979 (s 12(a)), but approval is not required under the Native Vegetation Act 2003 (s 12(b1)). 3. Pruning of the tree may reduce the maintenance burden on the applicants and may marginally reduce risk through removal of larger deadwood, but pruning will not contribute to a solution of the sewer pipe issues (s 12(b2)). 4. The trees contribute to protection from both sun and wind, to the natural landscape and amenity of the respondents' property, and to the immediate locality. Both trees are close to and prominent from the street and are readily visible from neighbouring houses. Thus the provide intrinsic value to public amenity ((s 12(b3)(e)(f)). 5. With dense canopies, large size, and being native species, both trees could be expected to provide food and shelter for local fauna and thus would contribute significantly to local biodiversity (s 12(d)). 6. The trees are likely to be providing benefit to soil stability, and, particularly, to absorbing water and reducing run off (s 12(g)). 7. Section 12(i) considers 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. 8. The age and nature of the structure must be considered, as a certain amount of wear and tear is expected to arise with any structure over time. The Court considers these matters when determining the extent to which a tree may or may not have caused the alleged damage. 9. The original sewer pipes impacted by the trees were terracotta. It is now about 40 years since terracotta pipes were replaced by PVC for most plumbing applications. The pipes have thus been subject to normal wear and tear, and movement within the reactive clays common to this region. The Court considers that it is generally appropriate to order apportionment for damage to terracotta pipes when contemplating compensation for such damage, as a necessary consequence of their age and natural deterioration. Findings 1. For me, this is a difficult situation. Particularly with trees of high amenity value like these, the Court seeks a solution which resolves the dispute but retains the trees. As noted by Mr Hussein, the trees provide a range of important benefits, with shade and protection from the harsh summer afternoon sun being amongst the more obvious. Cliched as it sounds, the various environmental benefits trees provide are often not appreciated until they, along with the tree, are removed. 2. Considering the long history of plumbing works, and the current condition of the sewer line, with joints between terracotta and PVC pipes and a junction with the sewer main close to one tree, I am satisfied that the trees are likely to re-enter the pipes and cause further damage. 3. Beyond the toilet and sewer pipe damage rectified in 2022, the original terracotta sewer pipe continues under the living room, and under the concrete based carport to the point where it was replaced with PVC pipe at the top of the driveway in 2013. Further plumbing works arising from root clearance under the dwelling and carport would necessarily be difficult and expensive. 4. I also accept the applicants' position that should future root clearance works be necessary at the bottom of the driveway at the junction with the sewer main, the applicants are likely to be considered responsible for such damage, as a consequence of the trees. 5. The installation of a continuous root barrier to isolate the trees' roots from the sewer line may allow tree retention and a solution to pipe blockage. In contemplating this, one must consider the extent of impact on the trees from the required root severing. AS4790:2009 – Protection of Trees on Development Sites, provides a framework for such assessment and Mr Hussein included this in his arborist report. 6. The Tree Protection Zone (TPZ) for the Lemon Scented Gum was calculated as 15 m, and 10.2 m for the Spotted Gum. As the root barrier would need to be located on the western side of the driveway, roots would be severed about two metres from each tree. Presuming a reasonably symmetrical root distribution, this would constitute an incursion into the Lemon Scented Gum's TPZ of about 40%, and about 30% of the Spotted Gum's TPZ. A 10% TPZ incursion is normally considered the maximum acceptable level. Both trees' Structural Root Zones (SRZ's) would also be significantly compromised. 7. As a consequence, such a root barrier would not be a viable option as the risk of windthrow from destabilisation in the ground would rise to an unacceptable level, and the trees' health is likely to decline markedly. Tree removal is the remaining viable option. 8. The applicants initially claimed compensation of $7,479, which covered sewer pipe replacement in 2013, at a cost of $5,500, and repeated sewer pipe clearance, totalling $1,979 up to 2018. 9. Section 14(1)(d) of the Limitation Act 1969 has the effect of imposing a six year limit on such claims for compensation under the Trees Act. Thus, there is a general six-year time limit, as from the date of filing the application under the Trees Act, for compensation for past damage to an applicant's property (except for damage to house foundations) (see Moroney v John [2008] NSWLEC 32 at [32] and [33]). The consequence here is that the $5,500 pipe replacement cost from 2013 is outside the time limit for claims, as are the majority of the pipe clearance costs. The invoices that qualify within the six-year time limit total $521. 10. The applicants also claimed compensation for works in April 2022 for Jet blasting pipes and CCTV inspection totalling $1,452, and for sewer pipe relining costing $11,594.88. As the supplied invoices are itemised and the plumbers report includes images of roots in the pipes, these invoices provide a sound basis for compensation. 11. Consequently, the compensation payable by the respondents shall be $521 plus $1,452 plus $11,594.88 = $13,568 less a discount of 25% to allow for the 'age and nature of the structure', as considered in s 12(i) of the Trees Act. The balance payable is thus $10,176.00. 12. The Sabellano's also claimed for a new fence between the properties, at the respondents' expense. The Trees Act provides the Court with powers to access the Dividing Fences Act 1991 to resolve fence issues, and this is appropriate here. 13. The default position under Pt 2 S7(1) of the Dividing Fences Act 1991 is for an equal division of the cost of a sufficient replacement fence. The applicants made various claims that the trees have damaged the fence, but I am satisfied that the advanced age and natural timber deterioration is the primary cause of the fence's demise. As a result, orders made for fence replacement will include an equal share of the cost for each party. 14. With respect to the applicants' claim for Legal costs, Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion with the Court, which is heard before the Registrar, or a judge. Conclusion 1. Though I sought to resolve this application whilst retaining the trees, neither the status quo nor the installation of a root barrier present viable outcomes. Future damage is likely, not necessarily within 12 months as per Yang, but it is probable in the medium term. The site constraints are such that the only available location for root barrier installation passes within two metres of the trees, resulting in an unacceptable risk of destabilisation and windthrow in the face of onshore winds. 2. Considering the nature, extent, and duration of the damage that the applicants have endured, it is not reasonable for them to face further similar damage in the medium term. Of the available options considered, only tree removal is likely to satisfactorily resolve this problem. Orders 1. The orders of the Court are: 1. Within 28 days of the date of these orders, the respondents shall pay the applicants $10,176.00 by E.F.T. or Bank Cheque, as compensation for plumbing damage. 2. Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Lemon Scented Gum and the Spotted Gum to near ground level and poison their stumps. These works shall be undertaken by AQF level 3 arborists, with all appropriate insurances. 3. Within 90 days of the date of these orders, the existing boundary fence between the properties shall be replaced with a green Colorbond fence, matching the existing green Colorbond fence on the applicants' land. In the first instance, the respondents shall pay the fencing contractor. 4. To facilitate the works in Order 3, each party shall procure up to two quotations from licenced fencers or landscapers with all appropriate insurances. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen contractor satisfying the licencing and insurance requirements of the said order. 5. Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicants with a copy of an itemised paid invoice for the fencing works. 6. Within 7 days after receipt of the paid invoice in Order 5, the applicants shall reimburse the respondents by E.F.T. or Bank Cheque, for a quantum of 50% of the cheapest of the acceptable quotations from licenced, insured contractors, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation. 7. Where access is required to complete these works, or for the purpose of gaining quotations, the applicants shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works. 8. All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 9. All works shall be completed during normal work hours. ………………………………… J Douglas Acting Commissioner of the Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2022