Land and Environment Court of New South Wales CITATION : Payn v Allen [2010] NSWLEC 1315 APPLICANTS J and R Payn PARTIES : RESPONDENT J Allen FILE NUMBER(S) : 20734 of 2010 CORAM: Fakes C - Hewett AC KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; blocked sewer; earthenware pipes; compensation discounted on age, condition and construction of pipes LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 15/11/2010 EX TEMPORE JUDGMENT DATE : 15 November 2010 APPLICANTS Mr R Payn [litigant in person] Mrs J Payn [litigant in person] LEGAL REPRESENTATIVES: RESPONDENT Ms J Allen [litigant in person] JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C Hewett AC 15 November 2010 20734 of 2010 Payn v Allen JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Jannali against the owner of trees growing on an adjoining property. 2 The applicants are seeking the removal of 5 palms and the pruning of a Mulberry. The applicants contend that roots from the palms have blocked their sewer and will continue to do so. They are also concerned that overhanging branches of the Mulberry will lead to deterioration of the metal roof of their garage and may damage the fibrous cement edging of the garage roof. The applicants are also seeking compensation for costs associated with the unblocking of the sewer and for repair of the pipe. 3 The applicants have owned their property since 1984. The house is in excess of 50 years old. In 1996 extensions were added to the rear of the dwelling. The sewer line runs to the east down the southern boundary of the applicants' property then across the back lawn in a north-easterly direction and then east to the Board's main. 4 The sewer first became blocked in August 2007. This was cleared and the blockage was brought to the attention of the respondent as roots were removed from the pipes. The pipes are mostly earthenware. 5 The closest trees to the blocked portion of the sewer are palms planted by the respondent about 15 years ago. The palms are growing on the northern side of the respondent's property and comprise one Cocos Palm, one Washington Palm, one Kentia Palm and two Golden Cane Palms. It is also noted that there is a mature Crepe Myrtle growing in the applicants' back garden. 6 According to plumbing invoices submitted with the application, the sewer required further unblocking in March 2009, July 2010 and again in October 2010. 7 On 21 July 2010 a CCTV camera was inserted into the sewer from an access point under the house. A DVD of the footage was tendered in evidence. At approximately 2.7m from the inlet, the pipe turns sharply to the east. From the inlet to a distance of 4.4m the footage shows no evidence of root incursion. 8 At 4.4m the footage shows a hole in the pipe on the dwelling side of the sewer pipe that is almost the same diameter as the sewer pipe. This hole or collapse of the pipe shows soil and numerous roots. The roots are characteristic of palms. It is possible to see the roots that have been cut by the electric eel and new roots that have grown after the last clearing. 9 At 6.6m from the inlet some roots are visible in a joint between two sections of pipe. These roots also appear to be palm roots. The footage shows a section of PVC pipe at about 8.3m. There is no intrusion of roots beyond 6.6m. 10 The applicants are claiming the following amounts for works undertaken on the sewer. They are not claiming the costs of clearing the sewer prior to 2010. Item 1 - $302 for clearing of the sewer on 15 July 2010 Item 2 - $282 for CCTV inspection and DVD Item 3 - $176 for pipe work for access for the CCTV [we note that this invoice is dated some weeks after the date of the CCTV inspection] Item 4 - $451 – for clearing of roots in October 2010. 11 We were shown the area said to have been unblocked in October 2010. This is the point at which the pipe deviates to the south as it exits from under the house. As there were no roots to be seen in this area in the CCTV footage we do not believe this area to be a problem however we are prepared to accept that the blockage had reoccurred at the 4.4m position. 12 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person. 13 With respect to the Mulberry, we note that some branches are resting on the roof of the garage. The applicants have pruned the tree in the past. The applicants said that there is no damage now but they are concerned about future damage. 14 From the evidence before us, we are not satisfied that the tree is likely to cause any damage to the roof in the near future. Therefore as none of the tests under s 10(2) are satisfied, the application for a Court order to prune the Mulberry Tree is dismissed. 15 We are satisfied that roots from one or more of the palms have entered the applicants' sewer at the 4.4m and 6.6m marks and have therefore contributed to the damage. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order. 16 Before making an order, the Court must consider a number of matters under s 12 of the Act. The relevant clauses are: (a) The trees are wholly located on the respondent's property. (e) The palms contribute to the scenic value and amenity of the property on which they are growing. (h)(i) Anything other than the trees that may have contributed to the damage. In this case, the most significant factors are the age and nature of the sewer pipes. The pipes are in excess of 50 years old and are earthenware. Something other than the palms has caused a large hole in the pipe at 4.4m. It is unclear from the CCTV footage but as it has a similar diameter to the main pipe it may be an old pipe connection. The incursion at 6.6m is at a join and likely to be the result of a failed or worn rubber ring. 17 As there is some contribution from the palms, we return to the orders sought by the applicants. The roots are typical palm roots but it is not possible for us to determine to which palm they belong. We do not think the removal of the palms is justified in the circumstances however some work is required to limit future damage. Even if the palms were removed, unless the damaged section of the pipe is repaired, any future plantings by the respondent could lead to problems. 18 We consider some financial contribution by the respondent is reasonable. The respondent should pay 50% of the cost of items 1 and 4 given above – these are the costs of clearing the sewer in 2010. This is a total of $377.00. 19 We don't consider the respondent should reimburse the applicants for the costs of the CCTV inspection and associated access works as these are not associated with the clearing of the pipes. 20 The damaged section of pipe should be removed and replaced with PVC and sealed in a way to prevent root incursion. The respondent should reimburse the applicants 50% of the cost of removing and replacing a 3m section of the pipe that includes the damaged sections at 4.4m and 6.6m. If the applicants wish to wholly replace the clay pipes with PVC this is at their discretion. 21 Based on a quote for the removal and replacement of a 5m section of pipe, we estimate that the respondent should reimburse the applicants no more than $495. 22 Therefore as a result of the forgoing, the Orders of the Court are: 1. The application to remove the palms is dismissed. 2. The application to prune the Mulberry is dismissed. 3. The respondent is to reimburse the applicants a sum of $377.00 within 30 days of the date of these orders. 4. The applicants are to obtain 3 quotes for the removal and replacement of the damaged sewer pipe. The quotes are to show a rate per lineal metre. 5. The works are to be completed within 90 days of the date of these orders otherwise orders 6 and 7 lapse. 6. The respondent's contribution is 50% of the cost of the removal and replacement of 3m of pipe. This amount is capped at $495.00. 7. The respondent is to pay this amount (or less) to the applicants within 21 days of the receipt of a tax invoice for the completed works. _______________________ _________________________ J Fakes P Hewett Commissioner of the Court 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.