Sutton v Killin & anor [2007] NSWLEC 668

Land and Environment Court of New South Wales

CITATION : Sutton v Killin & anor [2007] NSWLEC 668 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Melita Sutton PARTIES : RESPONDENTS Brian & Julie Killin

FILE NUMBER(S) : 20590 of 2007

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 20 September 2007

EX TEMPORE JUDGMENT DATE : 20 September 2007

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C THYER AC

20 September 2007

07/20590 Melita Sutton v Brian & Julie Killin

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

JUDGMENT 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Ms Sutton, the owner of 15 Woomba Close, Hornsby Heights, concerning two Liquidambar trees (Liquidambar styraciflua) located on the adjacent property at 17 Woomba Close. Mr and Mrs Killin own this property. 2 There are essentially five matters which fall for our determination in these proceedings: o the first relates to matters claimed in compensation by Ms Sutton for preparation of and reports and other matters associated with these proceedings. o the second concerns plumbing costs associated with the removal of tree roots from her domestic sewer connection; o the third relates to seeking an order that the remainder of the single tree which has not already been removed should be so removed, that tree being a Liquidambar with a stump remaining out of the ground some 1.5 to 1.8 m high; o the fourth is a claim for additional landscaping and paving that was necessary as a consequence of an earlier tree incident in 2003 occasioning damage to her swimming pool; and o finally, a claim for front area landscaping occasioned by damage caused in the removal of a second Liquidambar which is no longer physically present at the site as it had collapsed during March 2007 across Ms Sutton's property. 3 We deal first of the question of the claim for reimbursement of personal expenses and the like. In doing so, we separate out the question of landscaping materials in the front garden which we will deal with separately. There are a number of sub-elements in this part of Ms Sutton's claim. First is a claim for a solicitor's letter written to Mr and Mrs Killin – the question of legal costs is governed by s 69 of the Land and Environment Court Act 1979. The delegation given to Commissioners by the Chief Judge to hear and determine applications under the Trees (Disputes Between Neighbours) Act 2006 does not include a delegation to deal with questions of legal costs. We are therefore unable to deal with that claim. 4 With respect to the claim for time and other expenses associated with Ms Sutton's lodgement and pursuit of matters leading up to us hearing her claim, consistent with a line of the authority dealt with by the Court of Appeal and other tribunals, we do not consider it appropriate for us to grant those sorts of expenses for a person who is a litigant in person. 5 With respect for the engineer's and arborist's reports that are claimed, we are satisfied that both of them deal with matters that do not arise under the jurisdiction vested by s 10(2)(a) of the Act. The report provided by Mr Andrew Adamson, the arborist, concluded, with respect that the Liquidambar subject to the application for a removal order was not immediately hazardous to the adjoining property (although he did recommend that it be removed to prevent future property damage). 6 The structural engineer's report arising from an inspection on 30 March 2007 also related to the risk of the remaining tree with its present upper canopy structure. In light of Mr Adamson's report (which expressly precludes us from having jurisdiction pursuant to s 10(2)(a) of the Act as it rules out the likelihood of tree collapse damage in the near future, we would have no basis upon which we could permit reimbursement of the engineer's report as it is based on Mr Adamson's report. 7 The final such claim that remains to be dealt with is the question of reimbursement of the Tree Application fee. We are satisfied that it is not appropriate to order reimbursement of that as Ms Sutton is not entirely successful on all matters that she has claimed and that therefore there was a proper basis upon which Mr and Mrs Killin could resist at least some part of her claim. 8 We turn next to the question of damage to the sewer. There is no dispute that there was a sewer invasion by tree roots that had to be removed by a plumber at a cost of $280.00. There is also no dispute that the nature of the sewer line involved is a terracotta pipe – that being the evidence given by Ms Sutton. 9 We have carefully examined the range of trees in the vicinity of where her household sewer line runs to connect with the Sydney Water sewer trunk main. We have had the advantage not only of the inspection on the ground but consideration of a Sydney Water sewer diagram to assist in that process. Although there is a significant eucalypt to the north-north-west of the sewer connection, it is at a considerable distance removed from the area where the tree roots were in the sewer pipe. 10 We are satisfied, given the likely water flow pattern based on the rock shelving in the vicinity, that the tree roots which have entered the sewer are more likely than not to be roots coming from the Liquidambar which remains growing in the front area of the Killin's house. We are, therefore, satisfied the claim for reimbursement of the sewer work should be granted subject to the consideration of apportionment issues which arise from the consequence of the sewer being a terracotta sewer line some 35 or so years old and which, as matter of necessity, must have suffered some degree of joint failure for the tree roots to have entered the sewer line in the ordinary course of events. 11 The rule of thumb which has been applied by the Court on a number of occasions when dealing with terracotta sewer pipes of considerable age - based on both the necessity for there to be a breach of in the pipe jointing and the fact that such terracotta sewer lines have a replacement age - is to require the owner of the tree to pay 60 percent of the cost of the work. 12 We consider, given that this is an area where we can only estimate, that we should adopt that figure in this instance. That would require Mr and Mrs Killin, on that basis, to pay the sum of $168.00 to Ms Sutton, which we would require to be paid within 28 days of the date of the orders of the Court. 13 We then turn to the question of the remaining Liquidambar. We are satisfied that the Liquidambar, on the balance of probabilities, has caused damage to Ms Suttons property as a consequence of the invasion by its roots into her sewer pipe. That is sufficient to invoke the jurisdiction of the Court pursuant to s 10(2)(a) of the Act - in that that tree has, we are satisfied, in the past, caused damage to her property. We are also satisfied that, unless the tree is removed, it is likely that in the near future that damage will continue to be caused and that the roots will continue to intrude into the sewer pipe. 14 We are, therefore, further satisfied that it is appropriate to require the removal of the reminder of the stump of that tree with the grinding of the stump and its roots to a depth of 300 mm below ground at the present stump location and that this be performed by Mr and Mrs Killin within 60 days of the date of the orders of the Court. 15 We were informed by Mr and Mrs Killin that, as part of the consent they had been given by Hornsby Shire Council to remove that portion of the tree which has already been removed by the them, they have been required to plant a replacement tree of their choice at a location of their choice. We have considered whether we should make an order, pursuant to s 9(2)(j) of the Act, to require the replacement planting of a tree at specified location and of a specified species. In face of the indication by Mr and Mrs Killin that they desired, as a matter of personal preference, to replace the tree with a deciduous one, we do not consider it appropriate that we make any order in that regard. 16 We turn to the question of the 2003 damage to the swimming pool. 17 Ms Sutton's evidence was that she had managed, beneficially, to get a larger swimming pool than that which had been replaced and that she had done so at an advantageous price. It was her oral evidence that there was no new swimming pool available at the same size as the pool was replaced and that that had required the replacement of the paving in the area. 18 Firstly, we are not satisfied on the balance of probabilities (absent any documentary evidence) that it was not possible to replace the pool with a pool of a similar size. Secondly, we are also satisfied that, under the circumstances of Ms Sutton getting the benefit of a larger swimming pool at, apparently, no significant additional cost, it is not appropriate for us to make any order concerning for claim for compensation for the 2003 event. 19 Finally, we turn to the question of the claim for $375.00 based on an element of a quotation from Nazha Landscapes, dated 27 March 2007, for five replacement plants for the front area of the garden. 20 Ms Sutton gave evidence that a number of the plants were damaged and required to be replaced. We are satisfied that several of the plants have been replaced in the vicinity of the replaced retaining wall (which replacement of the retaining wall was available pursuant to her household insurance policy but not, on her evidence, the nearby landscaping). In addition, the quotation from Nazha Landscapes identifies, specifically, that five plants are needed to replace damaged plants. 21 We are satisfied that this document provides corroborative evidence to the evidence of Ms Sutton in that regard and, therefore, that it is not unreasonable to order that Mr and Mrs Killin pay $375.00 for that purpose. 22 The consequences of that are that the Orders of the Court will require Mr and Mrs Killin to pay a total of $543.00 to Ms Sutton within 28 days of the orders of the Court and that the removal of the remaining portion of the Liquidambar is to be carried out within 60 days of the date of the orders of the Court