Land and Environment Court New South Wales Medium Neutral Citation: Owners of Strata Plan 7235 v Owners of Strata Plan 9829 [2015] NSWLEC 1277 Hearing dates: 17 July 2015 Date of orders: 24 July 2015 Decision date: 24 July 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Compensation and rectification ordered see [26] Catchwords: TREES [NEIGHBOURS] Damage to property, sewer and stormwater pipes; age and condition of pipes Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Owners of Strata Plan 7235 (Applicants) Owners of Strata Plan 9829 (Respondents) Representation: Applicant: Ms A Michailou (Agent) Respondent: Mr Dixon (Solicitor) Solicitors: Applicant: McCulloch and Buggy File Number(s): 20325 of 2015 Judgment 1. COMMISSIONER: The parties in this matter are the owners of adjoining 1970s villa developments in Bexley. The applicants contend that roots from one or more of the 13 trees growing on the respondents' property, along part of the common boundary, have blocked pipes, in particular the sewer pipes, servicing three of the four units on their site. 2. The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking compensation for money spent on plumbing services including clearing of pipes and replacement of small sections if pipe. They are also seeking rectification of the damaged pipes at the respondents' expense; in their view, the respondents should contribute 80% of the replacement costs. While the applicants agree that the earthenware sewer pipes will have deteriorated over time, they maintain that were it not for the trees, the pipes would still be functional. 3. The respondents contend that the age and material of the applicants' sewer pipes, combined with movement as a consequence of slightly reactive clay soils, are the primary causes and that roots would not have penetrated the pipes if they had not been damaged in the first place. They maintain the pipes are at the end of their useful life. The respondents are prepared to make a contribution of 5-10% of the plumbing costs and the replacement of the sewer. 4. Neither party is seeking the removal of the trees as they value them for the privacy and amenity they afford both properties. 5. In applications under Part 2, the key jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order under this Part unless it is satisfied that the tree concerned has caused, is causing, or could in the near future cause damage to property on the applicant's land, or could cause injury to any person. Injury is not pressed. 6. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 7. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [179] considers it sufficient if the tree is "a" cause when determining the nexus between damage and a tree. 8. The applicants' position is based on the following invoices included in the application claim form. The description of the work carried out is quoted, as written, from each invoice. * Take the Plunge Plumbing – invoice 0943 - 21.10.2013 - unit 3 – "Remove toilet and investigate sewer line with use of sewer camera. Found that at 6.38m downstream of toilet pipe, tree roots are visible penetrating through a cracked section of pipework. At 7m there is evidence of earthen wear pipe separating." $220.00 * Howard Plumbing Pty Ltd – invoice no. 29520 dated 30.11.2013 for works carried out on 18, 19 and 20.11.2013 to replace a 1m section of the sewer pipe in the rear yard of Villa 3. "Remove a section of the pavers in the rear yard above the root infested & collapsed section of sewer pipe…" $2,409.00 * Howard Plumbing Pty Ltd – invoice no. 29564 dated 30.11.2013 for work carried out on 27.11.2013 "to reports of blocked stormwater, affecting unit 3 especially. Ran jet from stormwater pit in yard of villa 3, jetted through line to clear of small amount of tree roots, plastic bags and sand, - there may be a collapsed line here but nothing major…. The presence of root growth or blockages in drains indicates possible damaged pipes. The damage cannot be rectified by simply removing the root growth or clearing the drain. For that reason, removal of root growth or the blockage alone carries no warranty that similar problems will not re-occur." $291.50. * Boyd Parsons Plumbing - invoice BK139 dated 7.7.2014 for attendance on 6.7.14. "Answered service call to carry out CCTV inspection to locate cause of recurring sewer blockages. Attended site and opened up inspection point in Unit 3 rear courtyard and ran camera up line to locate tree roots entering through two to three pipe joints. Ran sewer rods up line to clear out roots. Ran camera down line from inspection opening to locate numerous sections of tree roots entering line from junction of laundry toilet through to Unit 1 where sewer was completely blocked. Ran water blaster down line from Unit 3 inspection opening to boundary shaft located in front right hand corner of Unit 1 to clear out numerous sections of tree roots. Re-ran camera down line to confirm no further blockages." $1,199.00. * Ikon Plumbing Services Pty Ltd invoice no. 00004561 dated 24.02.2015. "CCTV inspection for sewer line for unit 3 in IO downstream near boundary trap. Found various location where tree roots entering VCP pipework. Tree line next door run parallel with sewer line causing blockage and backing up sewer line. Recommend to have sewer line jet blasted to clear all tree roots out of line, and if this reoccurs recommend to have this section of sewer line replaced to stop tree roots entering sewer line". $308.00 1. A quote from Ikon Plumbing Services dated 31.03.2015 estimates a cost of $15,950.00 to carry out the following: "Remove and repair of broken section of sewer joints where tree roots entering at sewer points in sewer main line. Remove pavers and dig up broken section and replace sewer line with PVC pipes. Back-fill and re-fit pavers. Areas affected are units 2 and 3 as shown on CCTV footage, units 1 and 4 are not affected. This problem is due to tree root infestation from next doors boundary line." 2. In further support of their claim the applicants contend that there have been no blockages of the section of sewer pipe servicing Unit 4 (upstream from unit 3) which is of the same age and material as the rest of the sewer and there are no trees adjoining this section. 3. It appears from the emails attached to the application claim form that the sewer problems were first raised with the strata manager in late October 2013 after the blockage incident invoiced on 21.10.2013. During the hearing, the applicants' agent advised that at that time, both properties were managed by the same strata manager. 4. I am satisfied on the basis of the information included in all of the invoices from the various plumbers who have attended the applicants' property that roots have entered and blocked the applicants' sewer pipes. The dysfunction of the pipes constitutes damage. The only trees in the immediate vicinity of the damaged sections of pipe are located on the respondents' property; there are no trees in any of the rear courtyards of the applicants' property. Therefore it is highly probable that the roots in the applicants' sewer pipes are from one or more of the respondents' trees and are a cause of the damage. Therefore I find that s 10(2)(a) is met and the Court's jurisdiction under s 9 of the Act, to make whatever orders it thinks fit, is engaged. 5. In determining what orders should be made, it is necessary to consider the relevant discretionary matters in s 12 of the Act. 6. The parties agree that the trees provide amenity for both properties, given their visibility from the street, they also provide some public amenity (s 12(b3)(e) and (f)). 7. Of most relevance is s 12(h), that is, anything other than the trees that may have contributed to the damage and the actions of the parties. 8. The respondents engaged Mr Anthony Fowler, a consulting engineer, to inspect the property and prepare an expert report (Exhibit 1). Mr Fowler inspected both properties and reviewed the relevant invoices. He visually assessed the soil and determined it to be slightly reactive clay; he did not have the opportunity to visually assess the pipes. His opinion is based on those site inspections, the information in the invoices and his practical experience. Mr Fowler's opinion is that the respondents' trees did not cause the plumbing failure, rather, the failure and leakage of the joints is due to the age and material composition of the pipes and jointing cement and soil reactivity causing minor differential movement between segments of pipe. In his view, the deterioration of the joints and the subsequent leakage has created a moisture rich zone which has attracted the roots and facilitated penetration of the pipes. 9. In response to this opinion, the applicants' agent pressed the problem-free section of sewer servicing Unit 4 and the absence of trees in the vicinity of that section. That is, except for the trees, the sewer would be functional. 10. During the hearing, several options were discussed including: removal of the trees to ensure no further incursion, regular clearing of the pipes, and replacement of the damaged section with PVC. 11. As stated above, neither party seeks the removal of the trees. Based on the recommendations of a number of plumbers, and the age and materials of the sewer pipes, the most sensible solution is the replacement of the damaged sections with solvent-sealed PVC pipes. The question is who should pay? 12. I have considered the evidence provided by both parties. I note the following comments on the various plumbing invoices in regards to the conditions of the pipes: * Take the Plunge Plumbing – 'tree roots visible through a cracked section of pipework'; 'at 7m there is evidence of earthen wear [sic] pipe separating'. * Howard Plumbing – call out for stormwater blockage notes 'there may be a collapsed line but nothing major'. * Howard Plumbing – replacement of section of sewer pipe at unit 3 – 'remove….the root infested & collapsed section of sewer pipe..' * Boyd Parsons Plumbing – 'tree roots entering through two to three pipe joints'. 1. It appears from these invoices that the sewer pipe and part of the stormwater pipe were in a state of disrepair when the first blockage occurred and further investigations confirmed this. Neither party adduced evidence to prove whether the roots have caused the physical damage that has facilitated the ingress of opportunistic roots. With the arboricultural expertise I bring to the Court, and contrary to Mr Fowler's opinion, roots are not 'attracted' by water but will grow opportunistically if they come across suitable resources. The sewer pipes are assumed to be about 40 years old and given the materials and nature of the joints, wear and tear is expected, particularly when installed into somewhat reactive clay soils. However, the roots are undoubtedly a recurring cause of the blockage. 2. The applicants notified the respondents when the first blockage occurred in late October 2013, after the date of the first invoice from Take the Plunge Plumbing, and on each subsequent occasion and thus the respondents were on notice of the problem from that time. The applicants have taken steps to investigate the cause and deal with the problem. 3. As a consequence of these factors, I am satisfied that the respondents should contribute 20% for some of the costs already incurred by the applicants and 20% to the cost of replacement of the sewer pipe. While one of the invoices refers to a section of stormwater pipe, no other evidence has been provided to determine whether that should be replaced. During the hearing the stormwater pipe was not canvassed to any great degree. 4. In regards to compensation for money spent, the invoices to which the respondents are to contribute are the Howard Plumbing invoice for $2409.00 dated 30.11.2013 and Boyd Parsons invoice for $1,199.00. The Ikon Plumbing invoice appears to be for an inspection only and not clearing. The respondents are to reimburse the applicants $721.60 which is 20% of these two invoices. 5. With respect to the replacement of the sewer, it was discussed during the hearing that the extent of any rectification requiring a contribution from the respondents is the length of sewer pipe from the fence between units 3 and 4 to the fence line of unit 1 and the common open space at the front of the applicants' property. Any work beyond these points is to be fully at the applicants' cost. Orders will be made for the process of obtaining and agreeing on a quote. 6. Therefore, as a consequence, the Orders of the Court are: 1. The application is upheld in part. 2. Within 30 days of the date of these orders, the respondents are to reimburse the applicants the sum of $721.60. 3. Within 40 days of the date of these orders, the applicants are to obtain three quotes for the replacement of the sewer pipe with solvent sealed PVC pipes, including removal and replacement of pavement, from the fence line between units 3 and 4 to the street-side fence of unit 1at 19 Albert Street, Bexley. The quotes are to include the section of pipe from the sewer to the external wall of units 1, 2 and 3, that is, the lateral connections to the common sewer pipe. During this time the respondents may also obtain up to three quotes for the same work. Within this time the parties are to exchange quotes and agree on the nominated contractor. If no agreement can be reached, the cheapest quote must be accepted. 4. Any quotes for additional work, including the replacement of any internal pipes and fittings or any extension of the PVC to the street or to service unit 4 are to be separately itemised and paid for by the applicant. 5. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and carrying out of the works in order (3). 6. The applicants are to engage and pay for the nominated contractor. 7. The works in order 3 are to be completed within 6 months of the date of these orders otherwise order (8) lapses. 8. The respondents are to reimburse the applicants 20% of the cost of the agreed quote for the works in order (3) within 30 days of the receipt of a tax invoice for the completed works. __________________________ Judy Fakes Commissioner of the Court ********** Amendments 28 July 2015 - Amended Class type 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: 28 July 2015