Land and Environment Court of New South Wales CITATION : Treeves v Hedge [2010] NSWLEC 1344 APPLICANT J Treeves PARTIES : RESPONDENTS D & D Hedge FILE NUMBER(S) : 20660 of 2010 CORAM: Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; roots blocking sewer; damage to other structures; compensation Trees (Disputes Between Neighbours) Act 2006 LEGISLATION CITED: Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 DATES OF HEARING: 19/11/2010 DATE OF JUDGMENT: 10 December 2010 APPLICANT Mr J Treeves [litigant in person] LEGAL REPRESENTATIVES: RESPONDENT Mr G Falvey [solicitor] SOLICITORS Falvey Associates Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 10 December 2010 20660 of 2010 Treeves v Hedge JUDGMENT 1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Port Macquarie against the owners of trees growing on an adjoining property. The respondents were represented by Mr G Falvey, solicitor. The application 2 The applicant is seeking the recovery of costs paid in relation to damage caused to his property by the trees. He is also seeking the recovery of future costs associated with removing the trees and rectifying the damage caused by them. 3 The trees are a Ficus benjamina (Weeping Fig) and a Liquidambar styraciflua. The damage alleged to have been caused by the trees is: - Blockage of the sewer by roots from the fig - Displacement of a timber retaining wall - Death of a section of lawn caused by shading and accumulation of leaf litter from the fig - Damage to a concrete path by tree roots 4 The applicant is concerned about future damage from roots of the Liquidambar and the Fig. 5 The costs incurred so far are itemised in a schedule of works. These include the unblocking of the sewer and the replacement of a toilet pan, applications of a chemical to control root growth, Arboricultural reports, part removal of the fig tree, applications to council and the Court, the excavation of trenches to locate tree roots and a CCTV investigation of pipe damage. These costs amount to $6,747 and are listed as 13 items in category A – 'recovery of costs paid to date'. The tax invoices for these works are attached to the schedule. 6 The future works and costs are grouped into two categories – B – 'recovery future costs – remove trees and roots' and category C – 'recovery future costs – fix structural damage'. Quotes for each of the items in these categories are attached to the schedule of works. 7 Category B contains 5 items comprising removal of the Liquidambar, grinding of the fig tree stump, removal of tree roots, rectification works to the damaged retaining wall (36m long x 600mm high) and restoration of the turf (180m2). Quotes for these works come to a total of $9,160. 8 Category C includes 4 items relating to the disconnection and reconnection of an air conditioner that will need to be moved if the concrete path is replaced, removal and replacement of 26m2 concrete pathway, sleeving of the damaged sewer pipe and the replacement of 2 toilet pans. These items total $16,875. Procedural issues Expert reports 9 Mr Falvey for the respondent submits that the arborist's reports obtained by the applicant and included in his application should not be admitted into evidence as they do not contain an acknowledgment by the arborist that he has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 (UPCR) and also found in the Court's Practice Direction No. 22. He also contends that the reports contain opinion evidence and hearsay. 10 In these matters, technical reports are often obtained by a party before the making of an application to the Court. These reports are typically from arborists, engineers and plumbers. The vast majority of litigants in these matters are self-represented and generally unfamiliar with the rules and procedures that govern expert witnesses. 11 It has been the Court's practice in these matters to allow reports obtained prior to the making of an application into evidence as part of the application form. This is enabled by s 31.19(3) of the UPCR, s 75 of the Land and Environment Court Act 1979 and by the Court's Practice Direction No.22. 12 However, applicants and respondents are given a written direction (Direction 14) at the preliminary or directions hearing that if they are to engage an expert witness to be present at the hearing and or to produce a report, they must advise the expert of their overriding duty to assist the Court and they must read and agree to be bound by the Expert Witness Code of Conduct. 13 If this direction is not followed, the Court may not accept the report into evidence or, depending on the circumstances of the matter, it may exercise its discretion to allow the report or the oral evidence. 14 Opinion evidence is the norm in Land & Environment Court proceedings where technical witnesses are involved. With respect to 'opinion' evidence, technical reports and expert witness reports are the opinion of the person who wrote them. However to be of use, particularly to the Court, they must state the facts and assumptions on which that opinion is based. If allowed into evidence, it should not be assumed that the report or the oral evidence will be of any assistance to the Court. 15 There have been many tree dispute matters where the Court has determined that the report, even with an acknowledgment of the Code of Conduct, is of no assistance to anyone. The respondents engaged Beukers & Ritter Consulting to prepare an engineer's report for these proceedings. The engineer makes assumptions based on the same evidence before the Court and the arborist, that is the visible roots in the trench. The report does not state whether the CCTV footage was seen or whether the toilet was inspected. The author considers the failure of part of the retaining wall to be partly caused by tree roots and partly by rotting of the base of the posts but then states that excavation behind the wall will be required to determine this. The assumption that the tree roots have contributed to the failure of the retaining wall is therefore unsubstantiated and of little assistance to the Court. 16 In the matter subject to these proceedings, both arborist's reports were obtained prior to the making of the application and I will allow them into evidence as part of the application. In essence they go to provide a basis for the making of the application. In many respects they contain material that I saw or heard for myself at the on-site hearing. The process of engaging the arborist resulted in a situation that enabled the viewing of roots in relation to the alleged damage to the applicant's property; this was of assistance to the Court. Payment of compensation 17 Mr Falvey submits that the applicant is a joint tenant with his wife and together they have a 7/19 of a share in the property and as such he is not entitled to the full amount of compensation claimed. He contends that whatever compensation the Court awards should amount to 7/38 of that sum. This he says is based on the common law. 18 Section 7 of the Trees Act states: 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. 19 Therefore, under s 7 of the Trees Act, any owner of the land may make an application. It is also noted that under s 3 of the Trees Act owner of land includes the occupier of the land. Thus the applicant in this matter is legally able to make an application in his name only. 20 With respect to whatever compensation may be payable, there is uncontested evidence that all payments for items listed in Category A have been made by the applicant himself and therefore, should the Court order reimbursement, the applicant is entitled to that payment. 21 If an order is made for any of the future costs listed in Categories B and C then it will be up to all of the owners of the applicant's property to determine how that should be dealt with. I do not propose to apportion any future payments in accordance with Mr Falvey's submissions. The trees and relevant background 22 The trees are located on the western boundary of the respondents' property and were there when they purchased their property in February 2003. They are in an informal group of other trees and shrubs that form a visual screen between the two properties. There is no fence along this part of the boundary. The applicant's property is down-slope from the trees. A timber retaining wall retains soil above a concrete path and the slab on which the applicant's house is constructed. 23 According to the respondents, in May 2003 the applicant voiced his concerns about the branches of the fig shading and starting to overhang his house. They state that they had the branches trimmed at their expense at that time. 24 The respondents state that the applicant approached them in 2006 seeking approval from Hastings Council for the removal of the Fig. The application includes a letter from the applicant to the respondents dated 28 December 2006. In the letter the applicant states that he sought advice from an arborist about the fig. The information supplied included comments on the potential size of the tree, its "invasive" root system and potential structural defects. The letter also raises concerns about overhanging branches, the stability of the retaining wall and potential damage to the house foundations and a concrete path. The applicant states that he had contacted the tree officer from Hastings Council. 25 According to the respondents they signed the council application form in January 2007 but neither party lodged the application. 26 In July 2008 plumbing works were carried out on the applicant's property. A tax invoice dated 14.7.2008 indicates that a blocked sewer line was cleared with high-pressure water-jetting. A camera surveyed the sewer line and located root penetration and a cracked pipe. The toilet pan was replaced. This work was carried out in the applicant's children's bathroom. It appears that the applicant again approached the respondents after this occurred. The respondents state that the application to remove the tree was signed but again no action was taken. 27 Receipts included in the applicant's evidence show payment for two applications of "Vaporooter" foam injection root control on 28.10.2008 and again on 17.12.2009. 28 In March 2010 the applicant engaged JKL Consultants to prepare an arborist's report on the Fig to be submitted to Port Macquarie – Hastings council. 29 The introduction in the report outlines the applicant's concerns about the encroachment of the tree onto his property, collapse of the retaining wall, lifting and cracking of concrete paths, shading of the house, leaf drop and suspicions about the fig roots being the cause of the sewer blockages. 30 The report includes photographs of the tree, surface roots close to the concrete path, cracks in the path and the extent of leaf litter and deviation of the retaining wall. The report concludes that the tree is a vigorous specimen with some structural defects including multiple trunks – some with bark inclusions. The arborist considers that the tree will outgrow the site. He states that it "is clearly evident that the Fig is causing damage to the Clients [sic] property …and will continue to do so until removed. The expected damage will come from the vigorous root system which has already made ingress into the Clients property… 31 The arborist suggests the installation of a root barrier as a management option but ultimately recommends the removal of the tree and its replacement with a smaller shrub or tree. 32 In April 2010 the applicant again approached the respondents regarding the removal of the tree. Another application was signed. It appears that on the basis of the arborist's report, council gave permission to remove the fig tree. This was done and then paid for by the applicant. However, the tree was not cut to ground level and the stump and the roots remain alive. A litre of herbicide was purchased with the intent of poisoning the stump. 33 In July 2010 the plumber was called in again, this time to clear a blockage from the applicant's ensuite bathroom [this adjoins the other bathroom]. A tax invoice dated 4.07.2010 describes the work carried out as "cleared the blocked sewer; removed the toilet pan; removed the tree roots from the sewer line; camera surveyed the sewer line and found the pipe to be broken". CCTV footage of this inspection was included in the application. 34 On 5.07.2010 JKL Consultants revisited the applicant's property and supervised the excavation of trenches along the concrete path. The excavation was carried out with a "Gutter Sucker" and according to the report dated 27.07.2010, the trenches ranged from about 300 to 450mm deep, 150mm wide and about 25m in total length. 35 The arborist revisited the site on 13.07.2010 and investigated the roots that were exposed in the trenches. In this report the arborist identifies the majority of the roots as belonging to the fig; this is based on the oozing of latex from the cut roots. 36 Other roots found in the trench are assumed by the arborist to be from the Liquidambar on the basis that they didn't ooze latex when cut, the absence of lenticels, the proximity of the Liquidambar to the trench (10m) and assumptions made on the vigour of Liquidambar roots. 37 The applicant filed the application with the Court on 16 August 2010. The hearing and the evidence 38 The trees and the relevant structures were inspected during the course of the on-site hearing. The trenches and roots were inspected although recent rains had filled the trenches with water. The location of the roots in relation to the structures was noted. 39 A small incision was made in a number of the roots to determine if they were from the fig. The production of latex and the presence of obvious lenticels confirmed the fig roots. The roots assumed by the arborist to be from the Liquidambar could not be confirmed as such. They did not have the characteristic smell of Liquidambar roots however such a qualitative test is of limited value. Absent any determination by a specialist in root identification the origin of roots other than the fig could not be determined. 40 The roots that had been extracted from the sewer in July were viewed as was the section of sewer pipe shown in the CCTV footage. The report submitted with the CCTV footage indicates that the inspection was made of the two toilets where the blockages had occurred. 41 The relevant parts of the plumber's report are that in the children's bathroom, the inspection: …found fractures around a 100 mm x 88 degree junction with roots penetrating through the cracks. This is under the outlet of the toilet and is almost a mirror image of the fractures in the junction under the pan which has been removed in the ensuite of the main bedroom…..The main line is clear of roots and functioning fine. Proceeded into the main bedroom's ensuite and headed downstream with the camera where the pan had been previously removed. Went past the fractured 100 mm x 88 degree junction with root penetrations is under the concrete slab…The main line in this area is in good condition and is functioning how it should. This shows that both root penetrations are under the concrete slab and in the pipe work that is the outlet of the two (2) toilets. 42 The plumber suggests 9 possible options for dealing with the problem including tree removal, root pruning and installation of a root barrier, creation of access points and toilet connections to enable easier access to future blockages, replacement of the damaged section via the concrete slab, re-lining of the damaged junctions, a combination of options, or do nothing. The applicant has proposed the relining option as it avoids major disruption and rectification of the floors around the toilet pans. 43 With respect to the retaining wall it is composed of 8 segments 3 sleepers high retained by vertical posts between each segment. There is some bowing of the top sleepers in segments 1 and 5 (viewed from the south looking north). The post between segments 5 and 6 is about 30-40mm off vertical. Segment 5 is closest to the remaining stump of the Fig. The applicant seeks compensation for the removal and replacement of the entire wall. 44 Cracks in the concrete path along the eastern side of the house were inspected. Crack 1 is located near the door to the garage near the southern end of the path. No root was seen under the crack however a fig root was noted nearby. The crack is about mid-way along an approximately 4m long section of path (ie between expansion joints). 45 Between the garage door and the air conditioning unit, the footpath splays out around a bay window. There are no expansion joints at the ends of the splay. Adjacent to the splay in the path is a concrete edge around a small garden bed at the base of the timber retaining wall. Some cracks were noted in this concrete edge and some roots were visible. Photograph 23 in the JKL report dated 27/07/2010 indicated that the root visible in the garden bed is likely to be the same root that is near crack 1. 46 It is noted that there is no displacement along the expansion joints of the section of concrete path beneath the bay window and beside the garden bed. 47 Crack 2 is a crack in an angled section of path on the northern side of the splay across to the wall behind an air conditioning unit. Several small diameter fig roots (3-5mm) are in the vicinity. 48 Several small fig roots were noted in the trench in proximity to one of the applicant's toilets. There was no cracking of the concrete in this area. The two toilets alleged to have been blocked are either side of a down pipe. There is an expansion joint between 2 approximately 4m long sections of concrete path. There is a slight lift in the slab along this expansion joint. 49 A fig root was noted growing along the joint between the brick wall of the house and the concrete path. It disappears from view at the point at which the pipe for the floor waste in the second toilet exits the wall. This floor waste is located approximately mid-way between the down pipe and another bay window near the northern end of the property. 50 There is another garden bed with a concrete surround adjacent to the second bay window and splay of the path. There is one visible crack in a corner of the concrete surround but no cracks in the surround or the path in the immediate vicinity of where quite large fig roots and possible liquidambar roots are exposed. 51 Two other cracks were noted towards the northern end of the path, beyond the second bay window, however there was no excavation adjacent to these cracks and no roots were observed. Findings 52 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that either of the trees concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 53 In this matter I am satisfied that the roots from the Fig have caused damage to the applicant's sewer by causing a blockage. This has been accepted as damage in many cases heard under the Trees Act. I also accept that unless action is taken to prevent future root growth the roots could cause further damage to the sewer. Therefore as two of the tests under s 10(2) the jurisdiction is enlivened with respect to the fig and the Court may make an order under s 9. 54 With respect to damage to the concrete path and the retaining wall the contribution by roots is less clear and other site factors must be considered. Similarly the contribution, if any, by the Liquidambar to any damage to any property is unclear. 55 Before making an order, the Court must consider a number of matters under s 12 of the Trees Act. The relevant clauses in this matter are: (a) The trees are wholly located on the respondents' property. (b3) The Liquidambar contributes to the privacy of the respondents' property and forms part of a visual screen. Although it is noted that there is a considerable distance between the parties' properties. (e) The Liquidambar contributes to the scenic value of the land on which it is growing. (h)(i) Anything other than the tree: These are considered in more detail below but include the age and nature of the retaining wall; the type and amount of soil it retains; the age and length of concrete sections of the path; and the construction of the sewer. (h)(ii) Actions of the parties: The applicant notified the respondents of the likely link between the fig tree and the blockages to the sewer; the applicant paid for the removal of the tree; the applicant engaged an arborist to investigate the presence of tree roots; the respondents sought advice from an engineer, building consultant and a plumber. 56 With respect to the retaining wall, it is noted that the soil on site is a red clay kraznozem. There is a distance of 6m from the edge of the retaining wall to the fig stump. It is unclear as to how old the retaining wall is but it is likely to have been in place for more than ten years and is made of timber. It is likely that the weight of soil and the water it holds have contributed to the displacement of the top sections of the wall. There are surface roots of the fig in the vicinity of the wall however only one segment near the tree is displaced. Even though there may be some contribution to the minor displacement of the wall, the evidence is circumstantial and not proven on the balance of probability. As a result of this no order will be made for compensation for the replacement of the retaining wall. 57 There are roots adjacent to the concrete path however, no roots of any substantial size were shown to be under the cracks in the path. There is clearly a root between the wall and the path in the vicinity of the toilet floor waste pipe. The cracks are in the sections of concrete that are about 4m in length. The shorter sections near the bay windows have no cracks. The engineer engaged by the respondents considers the crack near the air conditioning unit is due to vibrations. However, there is no information provided in the report to substantiate that opinion. The uncontested evidence of the applicant was that the air conditioner is rarely used. 58 On the evidence before me, while there are roots that appear to be growing under the concrete path, nothing of any size was found beneath the cracks however, that is not to say that future damage would not arise if the fig were left to grow. The cracks are small and possibly related to the absence of expansion joints as much as anything else. There is no basis to justify the removal and replacement of 26m2 of concrete path however some contribution will be required should the concrete require cutting in order to repair the sewer pipes. 59 With respect to the blockage of the toilets, I am satisfied that the roots extracted by the plumber belong to the fig. The CCTV footage shows the likely point of entry being the fractured 100mm x 80 degree junctions of both toilets. 60 The respondents contacted the plumber who undertook the CCTV investigations seeking advice on how the fractures could have been caused. The plumbers reply is reproduced in part: In many previous occasions witnessed where pipe or fittings have fractured, they have been under pressure, ie. A fitting designed to be installed at a 2% fall is installed with either more or less grade, which puts the plastic fitting under stress causing cracks, splits and fractures. An example of this is an 88 degree junction installed vertically, has a side line entering at 86 degree or around 90 degree, putting the junction under pressure. Also, not having proper bedding (support) under a pipe line can cause the pipes and fittings to subside, again placing pressure on the pipes and fittings, which can damage them. Another problem is where the roots grow around pipes, concrete slabs, footpaths, etc, making them move, again causing damage. 61 On the face of it, it seems unlikely that roots would have entered at almost identical locations under the two toilets if there had not been an underlying problem with the fitting. Therefore it would be unreasonable not to apportion some costs to the applicant on this basis. 62 With respect to the various amounts claimed by the applicant, Commissioners do not have the jurisdiction to award costs associated with the making of an application. No costs will be ordered for the reimbursement of the arborist reports and the plumbing inspections. 63 However the respondent does not contest the reimbursement of the applicant of a sum of $1485 for items A1, A2, A3 and A9 on the schedule provided by the applicant. These are directly related to the clearing of roots from the sewer on two occasions as well as two "Vaporooter" treatments. In the circumstances, I think this is reasonable and payment will be ordered by the Court. 64 The applicant paid the full amount of the removal of the tree. I consider that the respondents should pay half this cost ($700) and should pay for the removal and poisoning of the stump. To ensure that the roots cause no further problems to the applicant's property in the time taken for the herbicide to take effect, the roots are to be removed in accordance with item B3 on the schedule. That is, a trench approximately 750mm deep by 29 metres long x 300mm wide is to be excavated along the edge of the concrete pathway, all roots are to be cut from this section and the trench backfilled and compacted. The compaction is essential to limit any future root growth from any remaining trees. This work is to be paid for by the respondents. 65 There is insufficient evidence to order the removal of or any other intervention with the Liquidambar. This is apart from ensuring that all roots are removed from the trench described above. 66 The applicant is seeking restoration of 180m2 of turf as a result of shading and leaf drop from the fig. Taking the applicant's position at its highest and accepting that the tree has caused damage to the lawn, the discretion enabled by s 9 is relevant. The quote is $1320. This seems excessive and unreasonable in the circumstances as the applicant's property is extensive with many other areas of useable turf. The affected area is at the side of the dwelling and unlikely to be used for any recreational purpose. The area could be re-seeded with an appropriate seed mix. It does not warrant an order of the Court. 67 With respect to the repair of the damaged sewer junctions and the replacement of the toilet pans the parties are to equally share the cost of the cheapest method of achieving this. This is based on the contribution of the fractured pipe and the ingress of roots from the respondents fig. The quotes are to include all associated costs that may be incurred including replacement of sections of the concrete path and or floor of the bathrooms. 68 Therefore as a consequence of the forgoing, the Orders of the Court are: 1. The application to recover costs incurred by the applicant is upheld in part. 2. The respondents are to reimburse the applicant the sum of $2185 (items A1, A2, A3, A9 and 50% of A7) within 30 days of the date of these orders. 3. The application to recover future costs associated with tree and root removal is upheld in part. 4. The application to remove the Liquidambar is dismissed. 5. The respondents are to engage and pay for a (minimum) AQF level 2 arborist to remove the remaining portion of the Fig to ground level and to poison the stump. These works are to be completed within 30 days of the date of these orders. 6. The applicant is to organise and pay for the removal of tree roots along the eastern edge of the concrete path on the eastern edge of the applicant's dwelling. The trench is to be 29m in length x 750mm deep x 300 mm wide unless constrained by services and structures. All roots are to be removed from this section and the soil is to be replaced and compacted in such a way as to limit future root growth. 7. The respondents are to reimburse the applicant a maximum of $700 [that being the quote given in item B3] within 21 days of the receipt of a tax invoice for the completed works 8. The works in order 6 are to be completed within 60 days of the date of these orders otherwise order 7 lapses. 9. The application to recover future costs associated with the fixing of structural damage is upheld in part. 10. The applicant is to obtain 3 quotes for the repair or re-lining of the damaged junctions of the sewer connections for the two toilets and the replacement of 2 toilet pans. The quotes are to include all costs associated with the works (excluding accommodation and travel costs). The quotes are to be obtained within 60 days of the date of these orders. 11. Copies of the quotes are to be provided to the respondents in that time. The respondents have 7 days to respond to the applicant with their choice of contractor otherwise the applicant chooses the contractor. 12. The repairs to the sewer are to be completed within 4 months of the date of these orders otherwise order 13 lapses. 13. The respondents are to reimburse the applicant 50% of the cost of the works in order 10 within 21 days of the receipt of a tax invoice for the completed works. ________________________ J Fakes 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.