Cacopardo & Anor v Woolcock & Anor [2017] QCAT 214

CITATION: Cacopardo & Anor v Woolcock & Anor [2017] QCAT 214 PARTIES: Michael Cacopardo and Roseanna Cacopardo (Applicants) v Richard Woolcock and Margaret Woolcock (Respondents) APPLICATION NUMBER: NDR126-16 MATTER TYPE: Other civil dispute matters HEARING DATE: 7 March 2017 HEARD AT: Brisbane DECISION OF: Member McLean Williams DELIVERED ON: 12 June 2017 DELIVERED AT: Brisbane ORDERS MADE: Application dismissed CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where tree roots entering already broken subterranean pipes – whether trees causing ‘serious damage’ to adjoining land Neighbourhood Disputes Resolution Act 2011 (Qld), s 46, s 62 APPEARANCES: Applicant: Mr Raymond Cacopardo, on behalf of Michael and Roseanna Cacopardo Respondents: Mr and Mrs Woolcock, in person REASONS FOR DECISION [1] This is an application pursuant to s 62 of the Neighbourhood Disputes (Trees and Dividing Fences) Act 2011 (Qld). It involves drains blocked by tree roots and has managed to generate a considerable volume of paper before the Tribunal. -- 1 of 9 -- 2 [2] The Applicants and the Respondents are long-term neighbours residing in Trinity Place, Robina. At one point they were on amicable terms however a heated dispute has arisen in consequence of broken and blocked sewer pipes at Mr and Mrs Cacopardo’s home, at 28 Trinity Place. The Applicants claim that the damage was caused by the invasive roots of a Fig tree (Ficus virens), growing in the Respondent’s backyard, at 30 Trinity Place. [3] The Cacopardos realised there were drainage problems in the main bathroom of their home on 19 May 2016. Mr Bradley Watts, a plumber employed by Complete Plumbing Pty Ltd attempted to unblock the drain by means of an electric eel, to no avail. A telescopic CCTV camera was then inserted into the pipe by Mr Watts, revealing it to be broken in a number of places, as well as to be blocked, by tree roots. [4] Although Mr Watts submitted a quote to repair the problem, Mr Cacopardo was concerned that Mr Watts might be in contact with the Respondents, so he did not proceed with the quote from Complete Plumbing Pty Ltd. Mr Cacopardo had another plumber, ‘Why Wait’ Plumbing Services, rectify the blockage.1 [5] On 23 May 2016 Why Wait Plumbing cut the concrete path outside the main bathroom, so as to gain access to and then rectify the drain. Mr and Mrs Cacopardo were charged $854.36 for this work. [6] On 6 June 2016 Mr and Mrs Cacopardo experienced a similar blockage, this time in their ensuite bathroom. Why Wait Plumbing returned, and cut another section of the concrete path to repair the drain, this time charging $1,064.10. On 29 May 2016 Mr Cacopardo had a concreter come and repair the concrete footpath. He charged another $200. On 17 June 2016 Why Wait Plumbing returned and proceeded to dig up the floor in the ensuite bathroom to do more repairs. These works cost Mr and Mrs Cacopardo a further $2,977.90. In the process of conducting that work the ensuite bathroom was very substantially damaged. As an interim measure, Mr Cacopardo purchased some wooden boards, so that he and his wife could at least walk safely into the bathroom. Realising that the ensuite bathroom would now also need to be fully renovated, Mr Cacopardo purchased some discount tiles (for $315.58) in readiness for that. [7] In early July 2016, Mr Cacopardo obtained a report from an arborist, Mr Jason-Jay Fletcher, from ‘Treescience’. A report from Mr Fletcher dated 7 July 2016 indicates that the tree roots in the Applicants’ drain were from a Fig tree, and that the only Fig in the vicinity was one situated about 200mm inside the boundary of the adjoining property – that owned by Mr and Mrs Woolcock, at 30 Trinity Place. That tree had a trunk diameter of approximately 200mm. 1 Affidavit of Michael Cacopardo, sworn 6 February 2017, paragraphs 4 - 5. -- 2 of 9 -- 3 [8] On 19 July 2016 Mr and Mrs Cacopardo wrote to the solicitors for Mr and Mrs Woolcock demanding compensation. In a response dated 27 July 2016, Mr and Mrs Woolcock’s solicitors said: “….our client has removed the tree being complained of… ….Our clients’ also have confirmation from your clients’ initial plumber that trees do not break pipes in his experience. It is our clients’ position that there was a pre-existing structural fault with your clients’ plumbing that caused the leak. In the circumstances, our client denies any and all liability with [sic] respect of the damage claimed by your clients” [9] Further correspondence ensued. On 8 August 2016 Mr and Mrs Woolcock’s lawyers sent a report from Complete Plumbing Services (dated 20 June 2016) to Mr and Mrs Cacopardo’s lawyers. That report specified that when Mr Brad Watts had scoped the blocked drain he had formed the view that: “The main sewer line had broken due to the ground and house moving over time, tree roots have proceeded to grow into the pipe and restrict the flow. This is a common problem that people have with sewage pipes as PVC pipes and fittings that are used become brittle and crack over time. As there is constant water in the waste pipes, tree roots are attracted to the water and start to grow in the cracks following the water source. Breaks are not caused by tree roots, tree roots can only enter after the pipes have already cracked”. [10] Mr and Mrs Woolcock also queried whether their Fig tree was ‘the’ tree that had blocked Mr and Mrs Cacopardo’s drains, postulating that the tree roots could have originated from any one of many trees in the vicinity. Because of that, Mr Cacopardo says he instructed tradesmen to remove even more of the concrete footpath outside the bathroom in an effort to prove – once and for all – that the Woolcock’s Fig was ‘the’ offending tree. More expense was incurred in consequence. Mr and Mrs Woolcock say that this extra step was one taken by Mr Cacopardo without any further consultation. [11] As at that date of swearing his affidavit2 (and here excluding QCAT filing fees and legal fees), Mr Cacopardo says that he has already incurred $6,950.12 in repair costs, all now claimed to be in consequence of damage by the Respondents’ tree. The Cacopardos also anticipated a further $11,215 in repair costs, making for a total claim as against Mr and Mrs Woolcock at the commencement of the hearing of $18,145.12.3 By the time of their filing final submissions, the Applicants’ claim had crept up to $20,353.12.4 2 6 February 2017. 3 Affidavit, paragraph 28. 4 Applicant’s submissions, filed 16 March 2017. -- 3 of 9 -- 4 Respondents’ position [12] As is made clear from the letter sent by their solicitor on 27 July 2016, Mr and Mrs Woolcock do not admit that ‘their’ Fig tree (since removed) blocked the Cacopardos’ drains and submit that, irrespective of which tree may have blocked the drains, the roots only obtained access to the drains because the pipes had already failed. In that light, Mr and Mrs Woolcock submit that there is no causal connection between the loss now alleged by the Applicants, and the Fig tree that used to grow on their property. [13] Mr and Mrs Woolcock also feel that the Cacopardos are bringing an opportunistic claim, by seeking to have their neighbours pay for the cost of a total bathroom renovation by falsely attributing the need for it to the fact of the tree root blockage. [14] Finally, the Woolcocks submit that the Cacopardos have incurred excessive expenditure, by digging up the blocked pipes, when the pipework could have been more easily and more cheaply repaired by the alternate means of pipe re-lining. As the name infers, pipe re-lining is a technique that does not require that the pipe first be dug up, in order to undertake repairs. Evidence [15] The Applicants brought before the Tribunal a plumber (Mr Jon McGregor); a builder (Mr Greg Skehan); and an arborist (Mr Jason Jay Fletcher). [16] Mr and Mrs Woolcock adduced evidence from their own arborist (Mr Craig Reid); and from the plumber originally called out by Mr Cacopardo to ‘eel’ the drain: Mr Brad Watts. [17] As part of QCAT’s standard dispute resolution procedures in these tree matters, an Experts’ Conclave was convened before another member of the Tribunal, on 17 February 2017. QCAT had directed that each of the arborists and the plumbers participate in that Conclave. Both of Mr Reid and Mr Fletcher participated as tree experts in the Experts’ Conclave, however Mr Watts was the only plumber in attendance at the Conclave. [18] A report was prepared at the Experts’ Conclave. In preparing that report, the experts were required to acknowledge that they had read and understood QCAT Practice Direction 4 of 2009, and to acknowledge that they fully understood that their primary duty was to assist QCAT in relation to the issues in dispute. It is as well now to commence analysis of the expert evidence with that Conclave Report. Joint Experts’ Conclusions: [19] In the joint report, the following consensus was obtained: “13. All experts agreed that the tree roots that Treescience tested would have been sighted while still attached and growing in the ground and could be seen visibly entering the broken sewer pipes. -- 4 of 9 -- 5 14. All experts agreed that tree roots are not able to penetrate PVC pipes that are in good working condition and comply with relevant plumbing standards. … 16. All experts agreed that although tree roots block drains, it originated from plumbing failure due to soil movement, age or substandard work. … 20. All experts agreed that the likelihood of the tree roots exerting pressure sufficient to break or dislocate pipes is low. … 22. All experts agreed that the break in the pipe had provided an opportunity for roots to grow into the pipe and restrict flow. [20] In addition to the unanimous conclusions (recorded above), Mr Brad Watts (as the only plumber present), opined that it was unnecessary to dig up the concrete path to identify the origin of the tree roots, as these had already been identified by non-destructive means, via CCTV camera (paragraph 24); and that the blockage could have been removed and the pipes repaired without the destruction of the ensuite bathroom, if the pipe re- lining technique had been utilised (paragraphs 29-30). Neither of the arborists present expressed a contrary conclusion. [21] Although the experts were in agreement that the pipes under Mr and Mrs Cacopardo’s home had already become broken, in consequence of ground movement (paragraph 16), and that moisture in the ground caused by rainfall was the main factor causing that ground movement (paragraph 37); and that Fig trees can contribute to the drying (and thus shrinkage) of soil beneath building foundations (paragraph 32), there was no consensus regarding the contribution of the subject tree to that phenomenon. Mr Reid and Mr Watts both felt that only rainfall had caused the problem, however Mr Fletcher felt that the fact of the tree roots under the Cacopardos’ home then drawing upon that moisture source would have been another ‘major contributing’ factor. Other Evidence (a) The Applicants [22] Mr Greg Skehan, builder, says that he went to the Cacopardos’ home on 26 June 2016 and gave them a quote for bathroom repairs for $9,730. Mr Skehan expressed the opinion that the quoted repairs were necessary and unavoidable, given the plumbing work in the ensuite that had already taken place, prior to his involvement. -- 5 of 9 -- 6 [23] Mr Jon McGregor, plumber, says that he went to the Cacopardos’ home on 7 February 2017, and observed cut concrete both in the ensuite bathroom and in the pathways outside the home. In his opinion it “would have been absolutely necessary to cut through the concrete both outside the property and inside the property in order to access the plumbing pipes, and in particular a junction beneath the ensuite bathroom”. 5 In addition, Mr McGregor opined that the amounts charged by ‘Why Wait’ Plumbing were necessary and reasonable costs;6 and that, in his experience, Fig trees can cause significant damage to PVC plumbing pipes, and can break PVC pipe, without there already being cracks in it.7 (b) The Respondents [24] The Respondents rely on evidence from Mr Watts and their own Arborist Mr Reid from the ‘Tree Advisory Centre’. Mr Watt’s evidence before the Tribunal (given by telephone) was consistent with the views expressed by him in both the Joint Experts’ Report and the letter excerpted in paragraph [9] of these reasons. Meanwhile, Mr Reid’s arboreal report is dated 10 January 2017. In it, he says that on balance the roots from the Fig at the Respondent’s home were those that blocked the pipework under the Applicant’s home, yet for that to have been able to occur, the pipes must already have failed. Mr Reid also expresses the view that the compressive strength of PVC (said to be between 55 and 89 Mpa) is many times greater than is the maximal force able to be exerted by Fig tree roots, as noted in the arboreal literature. Assessment of the Evidence [25] I am satisfied that the Fig tree that used to grow in the yard at 30 Trinity Place once sent roots into the yard at 28 Trinity Place, and it was this tree that sent roots into the Applicants’ drains. [26] I accept the evidence of Mr Skehan as truthful, however it does not assist in the resolution of this matter. [27] During the hearing firstly Mr Raymond Cacopardo acting on behalf the Applicants and then later Mr Michael Cacopardo in his final (written) submissions, were at pains to submit that the plumbing expertise of Mr Watts should not be accepted by the Tribunal, for all the various reasons now encapsulated in paragraphs 15(a) – 15(f) inclusive of the Applicants’ final submissions. In essence, it is submitted that Mr Watts was partisan in favour of the Woodcocks, having collaborated with them in an effort to defeat the Applicant’s claim; and that Mr Watts lacked sufficient expertise in pipe re-lining to now be able to express any views about it. Yet, having heard the evidence of Mr Watts for myself, I do not accept those submissions. In my assessment Mr Watts was an objective witness, who was doing his best to help the Tribunal, as an expert in plumbing. It is a 5 Affidavit of Jon McGregor sworn 14 February 2017, paragraph 2. 6 Ibid, paragraphs 3 – 6. 7 Ibid, paragraph 8. -- 6 of 9 -- 7 considerable stretch to suggest that he collaborated with the Respondents to defeat the Applicant when all he did was express a view that was unhelpful to them. Equally, absolutely nothing can turn on the fact that Mr Watts’ written evidence was witnessed by the same Commissioner for Declarations as that whom had witnessed other evidence submitted on behalf the Respondents. Equally, I think that any plumber is capable of discussing the relative economics of pipe re-lining in comparison to the complete replacement of blocked pipework. I say that notwithstanding that, ultimately, it is unnecessary for me to determine whether the Applicants have expended more money than was necessary by their having elected to dig up the pipes. [28] In order to succeed before QCAT, the Applicants must establish that their home at 28 Trinity Place falls within the remit of s 46 of the Neighbourhood Disputes (Trees and Dividing Fences) Act 2011 (Qld). Section 46 provides: “46 When is land affected by a tree Land is affected by a tree at a particular time if— (a) any of the following applies— (i) branches from the tree overhang the land; (ii) the tree has caused, is causing, or is likely within the next 12 months to cause— (A) serious injury to a person on the land; or (B) serious damage to the land or any property on the land; or (C) substantial, ongoing and unreasonable interference with the neighbour's use and enjoyment of the land; and (b) the land— (i) adjoins the land on which the tree is situated; or (ii) would adjoin the land on which the tree is situated if it were not separated by a road.” [29] The Applicants’ property easily satisfies the requirements of s 46(b)(i) (above), yet it remains to be determined whether the (former) tree has caused either “serious damage”: s 46(a)(ii)(B); or “substantial, ongoing and unreasonable interference” with the Cacopardos’ use and enjoyment of their land: s 46(a)(ii)(C). [30] The offending tree had been removed prior to the commencement of these QCAT proceedings, such that it is doubtful whether s 46(a)(ii)(C) remains available to the Applicants. The Applicants however specifically submit that the Tribunal should find that the Fig tree has caused ‘serious damage’ to their property: s 46(a)(ii)(B)); because “it belongs to a species known to develop extensive root systems which can cause serious damage to home -- 7 of 9 -- 8 foundations because of the pressure that they exert as they wedge themselves between basement walls and surrounding soil; and because the tree roots from this Fig were the most likely cause for ground movement that caused the damage to the sewage pipes beneath their home”.8 The Applicants rely, in particular, on specific passages selected from paragraphs 21 – 23 of the Joint Experts’ Report, as well as the opinion evidence expressed by their own plumber, Mr McGregor. [31] The Applicants fall into error by having engaged in a selective reading of the Joint Experts’ report. That report concludes that the pipework under the Applicant’s home had already become broken in consequence of ground movement, before the roots of the Fig tree having more latterly gained entry to the pipes, thus resulting in blockage. Blockage of the pipes thereby became the event that alerted the Applicants to the fact that the pipes were broken, and thus in need of replacement. [32] The Applicants’ claim could only succeed if the invasive roots of the Fig tree have either caused, or at the very least materially contributed towards the agreed cause for the pipes having become broken: ground movement. Mr McGregor opines that pipes can be broken by Fig roots. Yet, I do not accept that opinion, as it is contrary to the views expressed by both of the Arboriculturalists, and the other plumber Mr Watts, who all say that Fig roots do not have the capacity to crack pipes. [33] Mr Fletcher opines that the roots have likely significantly contributed to the soil movement that was the factor that ultimately cause the pipes to break, due to the roots drawing moisture from the soil, and thereby contributing to the contraction of the soil as it lost moisture. Again, I do not accept that opinion. It is contrary to the views expressed by both Mr Watts and Mr Reid, such that it is the minority, ‘dissenting view’ expressed by those participating in the Joint Experts’ Conclave. Equally, as identified by Mr Reid, it is a theoretical possibility only, given that the point cannot be seriously pressed in the absence of the results of any geological testing of the foundation soil type. In this case, that did not happen. [34] In my view the preponderance of the evidence gives weight to the correct and preferable view being that the pipes failed in consequence of soil movement, caused by soil moisture attributable to rainfall patterns; and, that it was only after the pipes had already failed that the Fig tree roots then gained access to them, thus eventually causing a blockage. That blockage was merely the event that informed the Applicants that they had a longstanding problem with their drains. It was not causative of the problem and as such it cannot be concluded on the evidence before me that the tree roots have caused serious damage in the manner now contemplated by s 46(a)(ii)(B). To allow this claim to succeed would be to make the mistake of confounding causation with consequential identification. In explanatory terms, it would be akin to the owners of a coal mine attempting to sue the owner of the canary that had alerted them to the fact of a gas problem in their mine. 8 Applicants’ final submissions (16 March 2017), paragraphs 4 & 11. -- 8 of 9 -- 9 [35] The Application is dismissed. -- 9 of 9 --