Beilharz v Goodwin

The hearing

1. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Land and Environment Court's 'COVID-19 Pandemic Arrangements Policy'. Both parties filed extensive material, including photographs and video footage. I was satisfied from the material filed with the Court, considered along with the parties' submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

The history of the dispute, along with relevant submissions and evidence

Remnant trees and damage

1. The two gum trees are mature Eucalyptus punctata (Grey Gum): 'T1' and 'T2' in Mr Beilharz's application. They are tall, with broadly spreading crowns. They are indigenous, occurring naturally in the area.
2. Historic aerial photographs of the area, available on Council's website, show these properties were covered with tree canopy before they were developed with dwellings during the 1960s to 1990s. Mature indigenous trees within both properties, including T1 and T2 on Ms Goodwin's land, are likely to be remnant vegetation. That is, all development of these properties, including dwellings and retaining walls, has occurred around these pre-existing trees.
3. Contour maps, also available on Council's website, show the land generally slopes down to the southwest. Mr Beilharz's land is south of Ms Goodwin's, so the land on his side of the common boundary is generally lower than the land on the other side.
4. A dwelling was constructed on Ms Goodwin's land (although she did not own it at that time) some years before the Beilharz dwelling was constructed. Trees T1 and T2 are part of the remnant vegetation remaining on Ms Goodwin's land. Mr Beilharz occupied his dwelling not long after it was constructed, and has been here for approximately 27 years. A very large Grey Gum in Mr Beilharz's back yard is part of the remnant vegetation remaining on his land.
5. A brick retaining wall ('the retaining wall') was constructed along much of the common boundary at the time of, or soon after, construction of the Beilharz dwelling. Mr Beilharz submitted that the wall was properly designed and constructed to required engineering standards, with a wide footing, pillars as needed, and with drainage behind the wall. He submitted that the wall is bedded on solid rock and would not suffer from any subsidence. Brush fencing was later installed on top of the retaining wall.
6. Most of the retaining wall is constructed along the boundary. A small section near its western end is stepped out into the Beilharz property. Mr Beilharz submitted that this was a result of the discovery, during the wall's construction, of the neighbour's sewer pipes being located on the boundary at this point. It was determined to construct the wall around the pipes rather than relocate the pipes.
7. At places, where large boulders are on or close to the surface of the land along the boundary, the brick retaining wall is built over those boulders.
8. Mr Beilharz submitted that rubble was removed from the back garden area of his property during construction. The rubble had been pushed onto this part of his land from Ms Goodwin's land during construction of the Goodwin dwelling. Removing the rubble thus restored the natural grade of his land, he said. He thought Ms Goodwin's land was raised on its lower side to provide a flatter area for the Goodwin dwelling, resulting in the difference in levels on either side of their common boundary. Ms Goodwin, on the other hand, submitted that Mr Beilharz's back garden area was excavated to create a level area, leaving it lower than natural grade near the boundary, leading to the requirement for the retaining wall.
9. The only expert evidence in these proceedings was filed by Ms Goodwin, being a survey plan and report by R Harrison, a registered surveyor. The survey plan shows locations of the boundary, the retaining wall and the brush fencing, the trees and other features. On page 2 of the report, Harrison wrote: "The Southern boundary is represented by a brick retaining wall for part of its length. On top of that wall is a brush fence for part of the length as shown on the sketch. Said retaining wall is constructed with the same bricks as are used in the adjoining residence, [Beilharz dwelling]. In the light of this observation and what appear to be "natural surface" in the rear yard of [Goodwin property], I would be of the opinion that the land on which residence [Beilharz dwelling] is constructed has been excavated below "natural surface" and resulted in the need of a retaining wall."
10. Mr Beilharz submitted that the pool on Ms Goodwin's property was constructed approximately 15 years ago using large rock-cutting equipment. According to Mr Beilharz, this could be the only factor other than growth of trees T1 and T2 that might contribute to the retaining wall's condition.
11. Ms Goodwin bought her property in November 2011, occupying it shortly afterwards.
12. In 2018 Mr Beilharz noticed small cracks in the retaining wall. He brought this to Ms Goodwin's attention and asked her to remove trees T1 and T2, as he identified them as the likely cause. According to Mr Beilharz, during the 27 years he has been here nothing has changed, apart from perhaps construction of Ms Goodwin's pool, that would lead to cracks in the wall, other than the growth of trees T1 and T2. Mr Beilharz planned to replace or repair the retaining wall at his cost, expecting Ms Goodwin to pay for tree removal. Ms Goodwin expressed her reluctance to remove the trees, which she valued as part of her garden and local environment, but also her willingness to remove them if they were indeed the cause of damage.
13. An initial application to Sutherland Shire Council to remove the trees was refused. After a further assessment by Council, including inspection of the retaining wall, Council granted consent to remove both trees T1 and T2. Council's determination dated 30 January 2019, showing Ms Goodwin as the applicant, was included with Mr Beilharz's application to the Court.
14. Ms Goodwin has clearly decided not to remove the trees. Her solicitor, Mr Phillips, submitted that Mr Beilharz has not provided evidence to show the wall was built to required standards, nor any evidence that trees T1 and T2 have caused any damage.
15. In the meantime, the size of cracks in the retaining wall has increased. Displacement of the wall has also led to the brush fencing atop the wall being out of alignment. Mr Beilharz says the cost of fixing the issue has increased as a result of Ms Goodwin's inaction, so he wants Ms Goodwin to pay for most of the costs: 90% of retaining wall remedy costs and 70% of brushwood fencing costs. He obtained an estimate from a bricklayer for removing and rebuilding the wall, with a cost range of $19,000 to $27,000 depending on the extent of works required; and a quote of more than $2,500 for repairing brush fencing. Mr Beilharz submitted that the wall is now dangerous, so he limits people's access near the wall.
16. Mr Beilharz's photos and video footage also showed damage to brick steps between his dwelling and the retaining wall, and damage to brick edging around a garden bed. He suggested that these areas of damage also resulted from Ms Goodwin's trees.
17. Mr Beilharz also raised a separate issue of Ms Goodwin's sewer pipes being blocked by tree roots in the past, causing sewage to flow overground from her property onto his, until Ms Goodwin engaged a plumber to clear the pipes.

Yuccas

1. Mr Beilharz's application also seeks orders for the removal of four yucca plants (T3-T6) growing on Ms Goodwin's property along the common boundary, as they are growing against and displacing the brush fencing. Ms Goodwin has agreed to remove three of these (T3-T5) but says T6 is planted in a pot and so it is not causing any damage.

Branch drop

1. While Mr Beilharz stressed that damage caused to his retaining wall was his principal concern, he was also concerned about branches falling from the trees onto his property, resulting in damage or injury - in particular, branches falling from T2 onto the area near his dwelling entry and car parking area.

Damage to the retaining wall

1. Firstly, I appreciate the efforts of both Mr Beilharz and Ms Goodwin in providing the Court with photographs and video footage showing the trees, the retaining wall and other features. In particular, Mr Beilharz sent the Court several minutes of video footage clearly showing the condition of the wall and the location of the trees. As a result, this decision has not suffered from the lack of a site view, as it is unlikely that anything further would have been revealed onsite.
2. I accept Mr Beilharz's lay evidence regarding the condition of the wall. He has lived at his property for many years and clearly cares for his property. He noticed cracks soon after they first appeared and has observed them develop over two or so years.
3. On the other hand, I cannot accept Mr Beilharz's lay evidence regarding causation of damage to the retaining wall. It is common for property owners to seek the most obvious factor when searching for a cause of property damage. Although large trees are highly visible and are obvious suspects, they may or may not be the cause. The Court has extensive experience with retaining walls as part of tree dispute proceedings, and while trees are sometimes found to cause or contribute to damage, damage has often been found to result from other causes, including hydrostatic pressure behind a wall, general deterioration of a wall over time, or inadequate construction or design of a wall. In the words of Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, at [62]: "As the respondents submitted, something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act to make an order to remedy, restrain or prevent damage as a consequence of a tree. In the language of Jenkinson J in McDonald, confidence on a "bare preponderance of probability" has not been engendered on the evidence adduced that the Sydney Blue Gum was a cause of damage to the applicants' dwelling. Embracing the language of the applicants' submission, I have not been left in a state of belief, on the balance of probabilities, that the tree is a cause of that damage."
4. It is possible that trees T1 and T2 have caused damage - this is not something I can rule out. But it is not up to the Court to rule out this possibility before refusing this application. Rather, the evidentiary burden lies with the applicant. The section of the Trees Act relevant to this element of Mr Beilharz's application is s 10(2)(a): "The Court must not make an order under this Part unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property."
5. On the balance of probabilities, I cannot be satisfied that the trees have caused damage. I am unsure if their roots grow against the wall. T1 is approximately 1.5 metres from the retaining wall, and T2 is approximately 2.8 metres from the wall. Large rocks are in the soil and against the wall. The wall is more than 25 years old. I have no expert arboricultural, geotechnical or structural engineering evidence before me. There are no plans showing the design and construction of the wall.
6. It follows that I cannot make orders for repairing or replacing the retaining wall, or for Ms Goodwin to contribute to the cost of such works.
7. Had Mr Beilharz provided persuasive expert evidence that satisfied me of the tree's contribution to damage, I would need to consider several relevant matters. There is no need to consider those at length here, but I briefly identify several relevant points below.
8. The trees that are subject to this application are remnant vegetation. They were growing here before any of the structures in this application were installed. Mr Beilharz showed extensive knowledge of the retaining wall's construction. It was constructed as part of works on his property. The proximity of the trees was known. In Black v Johnson (No 2) [2007] NSWLEC 513, the Commissioners established the following tree dispute principle at [15]: "The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration. If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of: the type of tree planted; and the suitability of the location in which it has been planted. Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential."
9. Had I been satisfied that Ms Goodwin's trees have damaged the retaining wall, I would consider the above principle in apportioning costs for any required remedy.
10. The Court has also apportioned costs according to the extent of a retaining wall known to be damaged by trees, compared with the need to replace the remainder of the wall due to general deterioration, for example in Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292.
11. Until 2018 Ms Goodwin was unaware of the possibility that roots of her trees might be causing any damage. Mr Beilharz informed her of the damage in 2018, suggesting it was caused by her trees, which she must remove, but provided no persuasive evidence of that, just as none has been provided to the Court. It would be unreasonable for Ms Goodwin to incur the financial cost of removing these two trees on the mere possibility that they have contributed to damage. The quote for tree removal included in Mr Beilharz's application was $7,150. There would also be an environmental cost. Without being given sufficient cause to take action, Ms Goodwin cannot be held responsible for further deterioration of the wall's condition during the last two years.
12. The points above are not reasons for my refusal of this element of the application, but might shed some light on relevant factors to consider towards any remedy and apportionment of costs had I found in favour of the applicant.

Damage to brush fencing

1. Where misalignment of the brush fencing atop the retaining wall results from movement of the wall, it follows that I cannot make any orders for its remedy, nor for Ms Goodwin to contribute to costs of its remedy. If I cannot be satisfied that trees T1 and T2 have damaged the wall, then I cannot be satisfied that they have damaged the fencing.
2. The yucca plants T3-T5 grow against the base of the fencing, pushing it slightly into Mr Beilharz's property. Ms Goodwin has agreed to remove those trees. The fence displacement is relatively minor, such that I would not make orders for any repairs to it. The minor damage they have caused enlivens the Court's jurisdiction at s 10(2)(a) of the Trees Act, so I will order the removal of trees T3-T5 to ensure they are removed, thus avoiding further damage.

Falling branches

1. Branches have fallen from both trees T1 and T2 onto Mr Beilharz's property. Dead branches could be seen in their crowns in photographs and video footage, some above frequently used areas of the Beilharz property, where damage or injury is likely if they fall. Therefore, orders will be made for pruning these trees to remove deadwood and hazardous branches above the Beilharz property and within several metres of a vertical plane above the boundary. Any habitat hollows encountered are to be retained. There should be no significant environmental impacts from these works. No Council consent is required to carry out these orders of the Court.

Other matters

1. I have considered all matters at s 12 of the Trees Act. Those matters that are relevant to this decision are discussed above. Regarding Mr Beilharz's application for costs, I note that Commissioners of the Court lack the power to award costs (a Notice of Motion would be required from Mr Beilharz to be heard by a Judge or the Registrar of the Court); and, the principal element of Mr Beilharz's application has been largely unsuccessful.

Orders

1. As a result of the foregoing, the application to remedy and prevent damage to the retaining wall is refused; the application to remedy damage to brush fencing is refused; the application to prevent damage to brush fencing is granted; and the application to prevent injury from trees T1 and T2 is granted. The orders of the Court are: 1. Within 30 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 prune the two Eucalyptus punctata T1 and T2 to: 1. remove deadwood greater than 50 mm in diameter above the neighbouring (applicant's) property and within five metres of a vertical plane above the common boundary; and 2. remove any other hazardous branches identified during these works as being likely to fail in the near future, where such branches are above the neighbouring (applicant's) property or within five metres of a vertical plane above the common boundary. These works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the Safe Work Australia 2016 Guide to managing risks of tree trimming and removal work. 1. The respondent is to give the applicant at least two days' notice of the works in (1). 2. The applicant is to provide all reasonable access required for completing the tree pruning works in (1) during reasonable hours of the day. 3. Within 30 days of the date of these orders the respondent is to remove the three yucca plants (T3-T5) along their boundary to ground level. 4. The exhibits are returned apart from Exhibits A and B.

Amendments 01 September 2021 - Amended jurisdiction to Class 2. 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: 01 September 2021