Briggs v Jones & anor [2015] NSWLEC 1248

Land and Environment Court New South Wales

Medium Neutral Citation: Briggs v Jones & anor [2015] NSWLEC 1248 Hearing dates: 6 July 2015 Date of orders: 06 July 2015 Decision date: 06 July 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; orders for compensation Catchwords: TREES [NEIGHBOURS]; Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ding & Anor v Phillips [2008] NSWLEC 1268 Harvey v Harding [2007] NSWLEC 489 Osborne v Hook [2008] NSWLEC 1231 Payn v Allen [2010] NSWLEC 1315 Category: Principal judgment Parties: Mr C Briggs (Applicant) Mr G and Mrs K Jones (Respondents) Representation: Applicants: Mr C Briggs (Litigant in person) Respondents: Mr G and Mrs K Jones (Litigants in person) File Number(s): 20136 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2. The applicant, who owns a property in Ambarvale, contends that a Eucalypt growing on an adjoining property has caused damage to his property and could cause injury to his family. The damage alleged to have been caused is the blocking of the sewer and damage to a fence. The concerns about injury relate to falling branches or failure of the entire tree. 3. The applicant seeks orders for the removal of the tree and the grinding of its roots. 4. While not formally seeking orders for compensation, the claim form indicates that compensation of $286.00 is sought. This comprises reimbursement for two plumbing invoices for the clearing of the sewer of $143.00 each. The claim form also indicates that rectification of the sewer is sought. Quotes included in the supplementary information filed with the court estimate a potential cost of over $7000.00 for works including: investigation by CCTV of the location of the problem, removal of overlying concrete and repairs to the sewer, and replacement of the concrete. 5. In March 2015, the respondents removed the tree; the stump was ground and the remains poisoned. 6. Section 4(4) of the Act enables Part 2 to be applied to trees that have been removed if they were situated on adjoining land immediately before the damage or injury occurred. 7. In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree 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. 8. Given the removal of the tree and the poisoning of the roots, the only remaining matter is whether orders can be made for the payment of compensation for plumbing costs and or for the rectification of the alleged damage. 9. The respondents' arborist identified the tree as a Eucalyptus saligna (Sydney Blue Gum). The respondents stated that they planted the tree close to the common boundary about 32 years ago. The applicant purchased his property about 5-6 years ago; the dwelling is about 13 years old. 10. There is evidence that a plumber cleared the sewer on 24/12/13. A letter from the plumber dated 2/6/14 states that the plumbers attended the applicant's property on "a couple of occasions for the clearing of blocked sewer drainage lines. On both visits to this property the cause of the blockage was found to be tree roots in the line." The plumber opines that the roots were from the respondents' tree. 11. During the hearing I observed no other tree on either property that may have caused a blockage. Given the location of the tree in relation to the blocked portion of the sewer, I am satisfied on the balance of probabilities that the roots from the Eucalypt have caused damage to the applicant's sewer by way of blockage. To that end, s 10(2) is met and the Court's powers under s 9 to make orders are engaged. 12. The application claim form and applicant's supplementary information include two copies of the same invoice. Therefore the evidentiary basis for reimbursement provides a sum of $143.00. 13. In Osborne v Hook [2008] NSWLEC 1231 and other matters, the Court has held that if an applicant becomes aware of damage being caused to their property and repairs the damage without providing the tree owner an opportunity to assess the damage or be consulted about the method and cost of rectification, this failure may be taken into account when considering whether or not to make orders relating to the damage. However, in Harvey v Harding [2007] NSWLEC 489, another case involving a blocked sewer, the Court accepted that urgent action was required given the possible consequences of a blocked sewer. 14. I consider it reasonable that the respondents reimburse the applicant a sum of $143.00 for the receipted clearing of the sewer on 24/12/13. 15. The applicant stated that since the removal of the tree the sewer was cleared again however, no invoice has been provided. 16. With the arboricultural expertise I bring to the Court, given the removal of the tree and its stump and the poisoning of any remaining material, no further incursion of roots can arise from this tree. The post- tree removal clearing will have removed roots that grew in the period between the last clearing and the removal of the tree. 17. With respect to the applicant's claim for rectification, it is unclear from the evidence as to the actual location of the blockage or the point of ingress of roots, and further, if there is any significant physical damage to the pipes occasioned by the roots. 18. The applicant's sewer skirts the eastern half of the southern façade of the dwelling and runs along the eastern façade before it joins the street main. The blocked section is believed to have been in a 4-5m section between the toilet on the eastern side and the south-eastern corner of the house. 19. In a number of matters including Ding & Anor v Phillips [2008] NSWLEC 1268 and Payn v Allen [2010] NSWLEC 1315, CCTV or "pipecam" footage has been used in conjunction with above-ground measurements to determine cases of damage to sewer pipes. However, in this matter no such evidence has been provided. While the applicant requests that the respondents pay for such an investigation, the onus is on the applicant to provide that evidence. 20. It is not reasonable for the Court to make orders for rectification works at the respondents' expense when there is no certainty as to the location, nature, and extent of any alleged damage and no such orders will be made. 21. During the hearing the issue of reimbursement of the application filing fee was raised. Commissioners do not have the jurisdiction to award such costs. Should the applicant wish to do so he can file a Notice of Motion which would then be heard by a Registrar or Judge of the Court. 22. In conclusion, the applicant's primary concerns, as articulated in the final orders he sought, have been addressed by the respondents. That is, the tree and its roots have been removed/ poisoned. However, as stated earlier, it is not unreasonable for the respondents to reimburse the applicant for the cost of clearing the sewer. Therefore the orders of the Court are: 1. The application is upheld in part. 2. Within 21 days of the date of this judgment, the respondents are to pay the applicant the sum of $143.00. ________________________ Judy Fakes Commissioner of the Court 20136 of 2015 (16.1 KB, pdf)