Background
Edward Maszluch and Yuli Xu owned neighbouring properties in Blacktown. After sewage backed up into a bathroom at Mr Maszluch’s property, contractors excavated and repaired a cracked earthenware sewer pipe containing tree roots. Mr Maszluch brought a Part 2 application under the Trees (Disputes Between Neighbours) Act 2006 (NSW), alleging that roots from a large English oak on Ms Xu’s land had damaged and blocked the connection to the Sydney Water sewer main.
Mr Maszluch sought removal of the oak at Ms Xu’s expense, $4,000 for the sewer repairs, reimbursement of the $307 filing fee, and $962.50 for his own time. The Court accepted that, given the urgent health issue, difficulty obtaining the owner’s contact details, and language barrier, he had made the reasonable efforts required to reach agreement. It noted, however, that an Acting Commissioner could not award the filing fee or compensation for a self-represented litigant’s personal time in these proceedings.
The plumber’s invoice recorded that CCTV inspection showed a cracked earthenware pipe full of roots. Mr Maszluch asserted in a text message that the roots were from the oak and that root samples had been kept, but no samples or species-identification evidence were placed before the Court. Several other nearby trees—including a jacaranda, camphor laurel, and broad-leaved privet—were also possible sources of the roots.
The Court’s Holding
The Court refused the application because Mr Maszluch did not establish the causal connection required by s 10(2)(a) of the Trees Act. The CCTV images showed roots inside the pipe but did not identify their species. The Court could not be satisfied on the evidence that the English oak, rather than one or more other nearby trees, caused the blockage or damage.
The Court also found it could not determine whether roots initially damaged the pipe or instead entered through an already deteriorating joint, crack, or collapse in the ageing terracotta pipe. The PVC-to-terracotta connection may have been leaking and attracting roots.
Nor was future damage shown to be likely in the near future. The blockage had been cleared, the pipe repaired, and the joint encased in concrete. Because neither past causation nor a near-future risk was established, the statutory threshold was not met, the Court could not make orders, and it did not proceed to consider the discretionary matters in s 12.
Key Takeaways
- Roots found inside a damaged sewer pipe do not, without more, prove that a particular neighbouring tree caused the damage.
- Where several trees could be responsible, root samples or other reliable species-identification evidence may be critical to establishing causation.
- Repairing the pipe and encasing the joint defeated the claim of likely near-future damage because no evidence showed a continuing risk.
Why It Matters
The decision illustrates the evidentiary burden in New South Wales tree-dispute proceedings. An applicant must establish a causal nexus between the specific tree concerned and actual, continuing, or likely near-future property damage; suspicion based on the tree’s size or proximity is insufficient.
It also highlights the distinction between roots causing initial pipe damage and roots exploiting defects in ageing infrastructure. Applicants seeking removal of a tree or reimbursement of repair costs should preserve and present evidence capable of identifying the roots and explaining how they entered and damaged the pipe.