3141APK Pty Limited v Owner Corporation NSW SP 21340

Land and Environment Court (NSW)|2021-09-13

Background to the application

On private property in Kensington, a Port Jackson Fig (Ficus rubiginosa) ('the tree') grows in a small level area of land between two retaining walls. The 'upper retaining wall', against which the tree is growing, is on land belonging to the Owner Corporation NSW SP 21340 ('the respondent').
3141APK Pty Limited ('the applicant'), as the owner of the adjoining land to the respondent's east, has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the tree's removal. The level land where the tree grows is supported by the 'lower retaining wall', which is on the applicant's land. The applicant says the tree has damaged their retaining wall.

Framework for this decision

Before making orders in applications under Pt 2 of the Trees Act, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree's owner (s 10(1)(a) of the Trees Act). The Court must also be satisfied, at s 10(2), that the tree 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 a person. The Court must consider a range of matters at s 12 of the Trees Act before making any orders at s 9.

Reasonable effort to reach agreement

Written correspondence attached to the application shows that the applicant wrote to the respondent trying to resolve the issue. It seems the respondent replied to initial correspondence, but the applicant received no reply to subsequent correspondence. The applicant offered to pay for the tree's removal and for replacement planting, and offered to make a contribution to other landscaping works on the respondent's property. I am satisfied that the applicant's efforts to resolve the issue were reasonable.

Respondent's lack of involvement throughout these proceedings

After these proceedings commenced, Josephine Caltagirone, an owner of one of the units in the respondent's property, attended the directions hearing and provided some input. As the matter progressed towards the final hearing, Ms Caltagirone notified the Court that she had not been appointed by the strata plan's committee as their agent. Furthermore, she intended to sell her property and would no longer be acting for the respondent. Further attempts to engage with the respondent went unanswered, despite the strata plan's registered agent confirming to the Court that they were the agent for the strata plan. The respondent did not appear at any of the three hearings. Individual property owners within the respondent's strata plan might be unaware of the potential impacts of any orders made here, something I have considered throughout the proceedings. Nevertheless, I am satisfied that the Court has done what it can to include the respondent in these proceedings.

Hearings

All three hearings took place via MS Teams, attended only by the applicant's agent, James Harrison.

The tree has caused damage to the applicant's property

The applicant filed a report by Russell Kingdom, arborist (Exhibit C). Photos in Mr Kingdom's report show the tree is healthy, with a full spreading crown. Mr Kingdom described the tree as approximately 12 metres tall with a stem diameter of approximately 500 mm. The tree's stem leans to the east, into the applicant's property, with most of the tree's crown over the applicant's property. Mr Kingdom noted that the lower retaining wall, being the wall on the applicant's property, was in exceptionally poor condition.
The application included no further expert evidence. Without the benefit of a site view, and with no reply by the respondent, I thought it was appropriate for the applicant to provide the Court with evidence regarding the wall's condition, causes of damage, and possible solutions. At the first hearing, I gave the following orders: 1. Within 30 days of the date of these orders the applicant is to file with the Court and serve on the respondent a report from a structural engineer on the condition of retaining walls on [respondent's address redacted] and [applicant's address], Kensington, in the vicinity of the fig tree at [respondent's address], along with the likely causes of the walls' condition, and an opinion on whether the fig tree can be retained without causing further damage to retaining walls. 2. The applicant is to give the respondent two days' notice of the engineer's inspection. 3. The respondent is to allow access to the engineer to conduct the inspection. 4. Within 30 days of the date of these orders the respondent is to file with the Court and send to the applicant [applicant's email address] a written response acknowledging that they are aware of the current proceedings and expressing their preferred outcome along with any reasons. 5. The matter will be listed for a further hearing at 10am on 15 October 2021.
Despite the orders above, no response was received from the respondent, nor did the respondent appear at the second hearing on 15 October 2021, held to allow any submissions arising from the engineer's report.
The applicant filed a report by Boris Miladinovic of ABVD Design, consulting structural and civil engineers. Mr Miladinovic inspected the site on 22 September 2021. In his report (Exhibit D), he described the area where the tree grows as follows (p 1): "Between the 'lower' and 'upper' retaining walls there is a flat patch of natural ground, approximately 2m in width, which contains the fig tree in question."
Mr Miladinovic found the lower retaining wall, on the applicant's land, was significantly displaced from its vertical alignment, with bulging and rotation causing parts of the wall at its top and between supporting buttresses to be displaced up to 30-50mm from their original alignment. He recorded cracks up to 15 mm wide. Referring to the relevant standard to evaluate this level of damage, he found the cracking was severe and the rotation of the wall was outside the acceptable tolerance. Mr Miladinovic concluded that the lower retaining wall on the applicant's land is unfit for purpose, is at risk of failing, and requires urgent rectification works.
Despite a lack of investigation behind the lower retaining wall, Mr Miladinovic found (on p 1) that the wall's cracking and bulging was "caused by root action of the fig tree." Mr Miladinovic conceded that the original design documents for this wall were unavailable, so its structural specifications were unknown. I consider it is possible that other factors have contributed to the wall's condition: factors such as a lack of drainage behind the wall, the age of the wall, and the possibility that it was under-engineered for the conditions. However, knowing the species of the tree, the vigorous growth habit of its root system, and its proximity to this wall, I accept that the tree has contributed to cracking and bulging of this retaining wall. To satisfy the jurisdictional test at s 10(2)(a) of the Trees Act, the tree must be a cause of damage to the applicant's property, but not necessarily the only cause: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [179], [180].

The tree is situated on the respondent's land

Reviewing Mr Miladinovic's report brought to my attention that the tree's position relative to the property boundary remained unclear. The plan accompanying the applicant's original 'claim details form' showed a small circle representing the tree's stem. The circle touched a line marked as the common boundary between the two properties, but given the plan's scale and detail, I could not be satisfied that the tree was on the respondent's property. For example, the plan did not indicate the height at which the tree's stem had been surveyed. The boundary, which crosses this flat area of land roughly parallel to the retaining walls, appeared on this plan to be around half a metre from the upper retaining wall. A plan in Mr Miladinovic's report showed the boundary closer to the lower retaining wall.
Orders can only be made under Pt 2 of the Trees Act for trees that are situated on land that adjoins the applicant's land (s 7 of the Trees Act). An order could not be made if the tree was situated on the applicant's land. At s 4(3) of the Trees Act, this is further clarified: (3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.
The Court has taken the position that a tree is situated principally on land if more than half of its stem where it enters the ground is on that land: see Chan v McDonald [2018] NSWLEC 1692 at [10]. Where this is not clear from visual observation, a detailed survey of the tree stem's base and the property boundary might be required: see Awad v Hardie (No 2) [2010] NSWLEC 1258.
With this in mind, I reopened the case to hear from the parties on this issue. At this third hearing on 3 November 2021, the respondent again did not appear. The following orders were made on 3 November 2021: 1. Within 14 days of the date of these orders, the applicant is to engage and pay for a registered surveyor to: 1. survey the stem of the Port Jackson Fig where it enters the ground, after clearing away leaf litter and other debris around the stem, to at least the level of detail shown in the third survey plan at [2] in Awad v Hardie (No 2) [2010] NSWLEC 1258, so that the shape of the stem where it enters the ground and all its root buttresses are accurately shown, along with the location of the base of the nearby 'upper' retaining wall and the location of the common boundary between the applicant's property and the respondent's property; 2. calculate and notate on the survey plan, for the cross-section of the stem where it enters the ground, the percentage of the stem's cross-section that is on the applicant's property and the percentage on the respondent's property. 1. Within 28 days of the date of these orders the applicant is to file a copy of the survey plan with the Court and send a copy to the respondent.
On 18 November 2021 the applicant filed a survey report by Lachlan Broome of DS&P Consulting Surveyors (Exhibit E). The plan shows the tree's stem at ground level is principally situated on the respondent's land. I include an excerpt of that survey plan below. Figure 1. Excerpt from DS&P Consulting Surveyors survey plan
Considering the above, the Court can make orders, but I must first consider the matters at s 12 of the Trees Act.

Matters at s 12 of the Trees Act

I have considered the matters at s 12 of the Trees Act and discuss relevant ones below.
The tree is situated principally on the respondent's land, its stem close to and partly overlapping the common boundary at ground level. Most of the tree's crown is above the applicant's land.
Although the applicant indicated at question 18 of the 'claim details form' (Exhibit B) that Randwick City Council's consent would not be required to remove the tree, there is insufficient information within the application for the Court to be sure of this. Pursuant to Pt B5 of the Randwick Development Control Plan 2013, consent is required to remove a tree more than 6 metres in height (this Port Jackson Fig is approximately 12 metres tall), but there are exceptions for trees that are a risk to human life or property.
Pruning the tree would not prevent further damage to the applicant's retaining wall.
The tree contributes to the amenity and landscape value of both the applicant's property and the respondent's property. It provides shade, cooling and other ecosystem services. There is no evidence that it has any cultural or historic value. It contributes little to public amenity. Benefits lost by the tree's removal could be replaced in the medium term by suitable replacement planting.
The applicant has made reasonable effort to resolve the issue with the respondent. The respondent has taken no action, but there is no evidence that this has led to further damage since they were first informed of the issue.
Considering the species of this tree and its proximity to the retaining wall, any replacement wall would need to be engineered to withstand the effects of future tree root growth, at significant cost. In the circumstances, removal of the tree is a more practical solution.

Conclusions

The jurisdictional tests are satisfied: the tree, which is on adjoining land, has damaged the applicant's property; the applicant has made reasonable effort to resolve the issue with the respondent. Having considered relevant matters at s 12, I see no practical alternative to removing the tree. Orders will be made to remove the tree and for replacement planting. Pursuant to s 6(3) of the Trees Act, the respondent is not required to obtain Randwick City Council's consent to carry out works ordered by the Court.

Orders

As a result of the above, the Court orders: 1. The application is granted. 2. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the Ficus rubiginosa below the retaining wall at the rear of their property to no more than 200 mm above ground level and to treat the stump to prevent regrowth. The works are to be done in accordance with the guidelines of the Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work'. 3. The respondent is to give the applicant 7 days' notice of the works ordered above and is to provide the applicant with a copy of the arborist's public liability insurance. 4. The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day. 5. Within 90 days of the date of these orders the respondent is to plant in a suitable location on their property a replacement tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity.

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: 18 January 2022

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (4)