Song v Hackney (No 2) [2016] NSWLEC 155

Land and Environment Court New South Wales

Medium Neutral Citation: Song v Hackney (No 2) [2016] NSWLEC 155 Hearing dates: 6 December 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Class 2 Before: Sheahan J Decision: There will be no order as to costs Catchwords: COSTS – "fair and reasonable" – circumstances of the case Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Rules 2007 Cases Cited: Burns & anor v St Clair & anor (No 2) [2015] NSWLEC 115 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Patane V Singh and Anor [2016] NSWLEC 13 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Song v Hackney [2016] NSWLEC 1512 Yang v Scerri [2007] NSWLEC 592 Category: Costs Parties: Olivia Yan Song (Applicant) Michelle Hackney (Respondent) Representation: Counsel: Ms V McWilliam, barrister (Applicant) Mr D Williams, solicitor (Respondent)

Solicitors: Juris Cor Legal (Applicant) Whitehead Cooper Williams (Respondent) File Number(s): 2016/00199993

Judgment

Background 1. The respondent to these Class 2 proceedings seeks an order in her favour following dismissal of the application by Acting Commissioner Fakes on 2 November 2016: Song v Hackney [2016] NSWLEC 1512. 2. The facts of that case were summarised by Acting Commissioner Fakes in her judgment (at [1]) as follows: The applicant, Ms Song, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two Liquidambar trees and the payment of $63,729.20 for losses arising from, or incidental to, damage to her property allegedly caused by the trees. The damage is said to be damage to the applicant's sewer pipes. Ms Song is also concerned that if the trees are not removed, then it is very likely that roots from the trees will infiltrate the pipes and cause them to burst again. 1. In her judgment dismissing the application, Acting Commissioner Fakes traced, at some length ([2] – [22]), the history of the dispute and attempts to resolve it. She then made the following findings in her judgment at [26] – [34]: 26 I concur with [Hackney's consulting arborist Mark] Hartley that roots from the two Liquidambars may have entered the applicant's sewer and contributed to the blockages. As the trees are aprobable cause of damage, the jurisdictional test in s 10(2) is satisfied and the Court's powers under s 9 of the Trees Act to consider what if any orders should be made are engaged. 27 Before making orders, the Court must consider relevant matters under s 12 of the Act. In this matter, s 12(h) is most relevant – that is, anything other than the tree that may have contributed to the damage, any acts or omissions by the applicant, and steps taken by either party to rectify or prevent the damage. 28 I am prepared to accept that roots from one or more of the other plants growing on each of the parties' properties may also have grown into the pipes. I am not persuaded by [Song's arborist Jim] McArdle's evidence that the woody roots found in the trenches he dug, or in the trenches dug by the plumbers, were the same as the roots within the sewer. It seems self-evident that if a trench is dug close to a large tree then the roots found in that trench are likely to be from that tree. Mr Hartley's report provides a cogent explanation of interactions between roots and sewer pipes and other possible causes of damage to pipes which may have provided access for root incursion. The fact remains that the actual roots within the sewer were not, and have not been, identified. 29 There is competing opinion as to when Ms Song notified Ms Hackney of the problems with the sewer. While Ms Song contends that in 2014 she told Ms Hackney that she'd had problems with tree roots in her sewer, which the plumber informed Ms Song had come from the respondent's trees, Ms Song provided no corroboratory material, such as invoices, to explain the problem. Similarly, if it is true that in 2013 Ms Song was not made aware of the downstream incursions, then the respondent could not have been aware of the problem. On this basis, I am not satisfied that the respondent should make any contribution to the works carried out in 2015. I consider the starting point for consideration of any possible contribution should be post the 2015 surcharge event as this appears to have initiated the mediation. 30 The question remains as to whether the respondent should make any contribution towards the works quoted by [Song's plumber Jackson] Shields in 2016. 31 From Mr Shields' evidence given on site, it appears as though the extent of the 2013 blockage was such that Mr Shields considered the blockage to have occurred over a 5-10 year period; that is before the applicant purchased the property. It also seems that some repairs had been carried out prior to Ms Song's purchase of the property, evidenced by a section of PVC pipe removed from near the site of the 2013 blockage. Further, the clearing and repair of the 2013 blockage involved replacing a small section of old pipe and connecting the new pipe upstream into two existing terracotta pipes and downstream into the existing terracotta pipe. While there is nothing to suggest that the new joins have failed, there is no evidence that the upstream pipes, the subject of the 2016 claim, were free from roots at that time. It could therefore be argued that insufficient action was undertaken in 2013 to rectify a pre-existing problem. As previously stated, the roots in the remaining section of sewer have not been identified. If they are from Tree 2, the closest Liquidambar, that tree has been removed and cannot cause future blockages. 32 Apart from the matter of compensation, the applicants' concerns go to future damage. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. In Robson v Leischke [[2008] NSWLEC 152] at [200] the 'near future' is considered in the terms of imminent/ real appreciable probability of irreparable damage. 33 Given that Tree 2 has been removed and the roots poisoned, it cannot cause any future damage to the applicant's sewer. While Tree 1 remains and is close to the large inspection/access point to the Sydney Water sewer main, and may have been a cause of the past damage, the applicant's sewer is new and has been diverted away from the tree. Assuming the sewer has been installed to industry standards and on the basis of the warranty provided by the plumber, there is no reason to believe that the roots from this tree will, in the period of 12 months considered by the Court to be the 'near future' cause damage to the applicant's sewer. Therefore, at this stage, there is insufficient reason to order the removal of that tree on the basis of a hypothetical possibility that future damage may occur. 34 On balance, it would appear that there is insufficient evidence to require Ms Hackney to make any contribution to the replacement of the remaining section of sewer/ waste water pipe. 1. The respondent Hackney seeks the following orders: That the Applicant in these proceedings, pay the costs of the Respondent in these proceedings in the sum of $18,030.11 That the Applicant in these proceedings, pay the costs of the Motion [estimated at $3,130.00]. Such other order or orders as the Court deems appropriate. 1. The amount sought in prayer 1 of the Notice of Motion represents the amounts paid by Ms Hackney to her solicitors and her arborist (Exhibit DPW1 fols 5 – 6) in relation to the substantive proceedings. The amount in prayer 2 appears at par 7.1 of Mr Williams's submissions on Ms Hackney's motion for costs.