This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
[2]
Background
ACTING COMMISSIONER: Mr and Mrs Carey (the applicants) and Mr and Mrs Pattinson (the respondents), share a side boundary between their properties on fairly steeply sloping land in Austinmer. The applicants' property is located higher up the slope, and a retaining wall, with a fence on top, separates the properties.
Mr and Mrs Pattinson purchased and occupied their property in 1996, at which point a Cinnamomum camphora (Camphor laurel) (the tree) was already well established in the rear of their side yard. Its trunk base is about two to three metres from the common boundary, and about one metre lower than the base of the retaining wall.
The applicants, who occupied their property about seven years ago, became aware of cracking render, and separation between the side of their concrete slab driveway and the retaining wall, in 2018, and commissioned a report from engineering specialists. As noted by the engineer, "in layman's terms, you are concerned that the retaining wall is falling over towards" the respondents' property. Mr and Mrs Carey were the second owners of their house, having purchased it from an owner-builder, who also constructed the retaining wall.
This initial report, from Mr Anthony Barthelmess, of Rienco Consulting, dated 3 August, 2018 (Exhibit A), noted slight rotation in the wall, which was "not immediate cause for concern", with four potential causes:
1. Shrinking or swelling of the foundation material, in both yards, which appears to be loose clay - exacerbated by unseasonably dry conditions.
2. Minor movement of the informal retaining wall in the rear yard of the respondents' property. The footing of the boundary wall appears to be in the zone of influence of the respondents' wall, and as such any movement in their wall will affect the stability of your wall.
3. The large tree adjacent to the wall in the respondents' yard, the dense, shallow root system of which may be impacting on the applicants' retaining wall, and subsequently the boundary wall, physically, and through exacerbation of reduction in soil moisture.
4. Possible swelling of backfill material used under the applicants' driveway.
With permission, Rienco Consulting accessed the respondents' yard to inspect the wall on 22 August 2018, and provided a second report (Exhibit B) dated 6 December 2018, after a period of three months' higher than average rainfall.
Based on negligible impact from this increased rainfall, the shrinking or swelling of loose clay foundation material (cause 'a' in the initial report) was excluded, and responsibility for the retaining wall displacement was subsequently focussed on the tree, with removal recommended.
In August 2019, the applicants provided the respondents with a copy of Exhibit B, in response to which the Pattinson's questioned "why an inspection of the foundations of the boundary wall was not the main focus".
Rienco Consulting was again commissioned for their opinion, which was provided on 10 September, 2019 (Exhibit C). They stressed that their focus, during two site inspections, was primarily on the wall. The report also suggested that the tree had grown extensively since the retaining wall was installed, and that, in this context, retention of the tree constituted a removal of support to the Pattinson's land, which, based on s 177 of the Conveyancing Act 1919, breached the respondents' duty of care owed to the applicants.
On 22 September, 2019, the applicants emailed the respondents, proposing four options of: tree removal, an engineering review of the wall at the respondents' expense, Community Justice Centre mediation, or an application under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act).
The respondents advised that they were seeking legal advice, and after a period following an unanswered email, Mr and Mrs Carey submitted an application, pursuant to s 7 of Part 2 of the Act, seeking removal of the Camphor laurel tree located in the adjacent neighbouring property.
[3]
The onsite hearing
Both parties attended the hearing, and the tree was initially inspected in the respondents' property. Mr Pattinson represented the respondents.
The tree is mature. It stands approximately 11 metres tall, with a largely symmetrical canopy about ten metres wide, and some branches extending to, and just across, the common boundary fence. It appears to be very stable in the ground. There are no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, which an arborist may interpret as indicative of stability issues.
Mr and Mrs Pattinson seek that the tree be retained, as it provides privacy, especially to their daughter's bedroom, shade and an aesthetic contribution. Mr Pattinson was adamant that tree roots were not damaging the boundary retaining wall.
[4]
Jurisdictional requirements
With respect to s 7 of the Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court is obliged to consider a number of matters pursuant to s 10 which states:
(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or
(b) is likely to cause injury to any person.
The respondents' solicitor, Mr Bahlmann, contended (in Exhibit 4) that "despite there having been a threat of legal proceedings, no notice was ever served on the respondents advising of the lodging of the application and the terms of the orders that were being sought in the application" and that s 10(1)(a) is therefore not satisfied.
Mr and Mrs Carey, however, submitted evidence of a series of engineering reports provided to the respondents, along with email communication over a two year period, and the following commentary provides explanation of the 'reasonable effort' required.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [194]-[195], Preston CJ notes:
"194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.
195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
Given this context, and the applicants' efforts, I am thus satisfied that there has been an attempt by the applicants to reach agreement with the owners of the land on which the tree is situated, as required by s 10(1)(a).
Mr Bahlmann, for the respondents, also objects to the Rienco Consulting reports relied on by the applicants, based on a lack of explicit acknowledgment of adherence to the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedures Rules 2005 (the Code), or on mere retrospective acknowledgment of it in Exhibit D. Though the Code is an important consideration, Mr Barthelmess, correctly noted that Class 2 matters are not bound by Rules of Evidence, and in the interests of transparency and justice, the Rienco Consulting reports will be accepted along with the respondents'.
Mr Pattinson submitted that about 22 years ago, he constructed a block retaining wall about one metre from the tree, between the tree and the boundary, in order to retain soil on the slope. He advised that he had initially excavated a trench about 500mm deep and built concrete block foundations with piers and reinforcing, on which the wall was based. This was not visible at the inspection, as it was below ground level.
Mr Pattinson said that in excavating for the foundations, he severed many roots from the tree, some of which were about 100mm thick, and that subsequent to this work in 1998, the land levels on his property had not been materially altered. The Pattinsons' current land level is about 200mm below the base of the boundary retaining wall, and the level of the tree trunk base is about 800mm lower still.
This internal block retaining wall remains in very good condition, with almost no distortion in any direction. Though Mr Pattinson's submission was unsubstantiated because of the absence of visible evidence, had Camphor roots of significant size and/ or quantity grown under or in amongst this wall's foundations over the intervening 22 years, elements of the block retaining wall would almost certainly have been visibly displaced and damaged.
Though the trunk, bark characteristics, and branch structure are indicative of a tree that is perhaps 35 - 40 years old, it is very small for its age, and its live twig growth displays a history of short stem extension, and low vigour, even though the tree is clearly healthy. This condition status is consistent with the scenario described by Mr Pattinson, where the damage to roots was substantial, and room for regrowth severely restricted.
The respondents provided an engineering report from Mr Goran Ugrinovski of ATB Consulting Engineers (Exhibit 1), dated 21 March 2020, which noted the cause of the damage to the boundary retaining wall as poor workmanship and construction methodology. Specifically, it noted that the wall was founded on surface reactive clays, built on shallow footings unsuited to the slope and soil texture, plus a lack of appropriate expansion or isolation joints.
The report also detailed a crack, visible from the respondents' side, where the footing and wall display a construction joint. Mr Pattinson submitted that the boundary retaining wall was constructed in two distinct sections, consistent with this junction, with the higher driveway area constructed initially. Significantly, this crack was clearly wider at the bottom and narrower at the top, which suggests settling or downward movement, unlike root impact which normally raises structures, and results in cracks which are wider at the top than at the bottom.
The respondents also provided a report from Mr Paul Vezgoff of Moore Trees (Exhibit 2), dated 23 March 2020, which notes that, over the last ten years, it is unlikely for roots greater than 100mm diameter to have grown beyond the concrete boundary wall footings, and that a 100mm diameter root will not damage a concrete footing constructed to Australian Building Standards. Mr Vezgoff also submits that due to the level difference between the tree base and the boundary retaining wall, the roots will be so deep in the soil that they are unlikely to impact on soil moisture levels near the wall.
Mr Pattinson challenged Rienco Consulting's assumption at [7] of Exhibit C, "that the existing wall was designed in accordance with best practice", and based on the evidence observed on site, such aspersions appear reasonable. The applicants and Mr Barthelmess endorse the quality of the wall on the basis that all final construction certifications were obtained, but beyond this, have no evidence related to the details surrounding this compliance.
In August 2018, Rienco Consulting's initial report included a recommendation for the applicants to request copies of any structural design plans for the Construction Certificate of the house, from Wollongong Council. This would likely have provided insight around wall construction compliance, including whether construction met required building Standards. The applicants did not follow this recommendation.
Significantly, though Mr Barthelmess conducted two site inspections in the respondents' property, and was encouraged and offered the opportunity to undertake excavation to clarify root presence near the boundary wall, he elected not to. He notes in a letter to the applicants, dated 16 March 2020 (Exhibit D), "though the respondent insinuates that proper investigation would entail excavation, I do not agree that such destructive testing would be of any benefit at this time, nor is it appropriate given the context and scale of the issue".
Given that the onus is on the applicant to prove their case by submitting evidence which satisfies the Act, this reticence to excavate has not assisted the applicants' position.
In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that "…it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
[5]
Conclusion
I have examined the tree and the site and have reached the following conclusions:
1. Although the applicants' house construction gained certification, insufficient evidence has been provided to clarify whether the boundary wall construction methodology was appropriate, and/ or met required Australian Building Standards.
2. The ongoing stability of the Pattinson's internal retaining wall, 22 years after construction, plus the relatively slow growth of the tree, suggests that the foundations of this wall have performed the role of a root barrier, likely limiting the spread of roots towards the boundary.
3. If roots are growing through or under this internal retaining wall, I agree with Mr Vezgoff, that due to the difference in level between the tree base and the boundary retaining wall, the roots will be so deep in the soil that they are unlikely to impact on soil moisture levels near the wall, and also that a 100mm diameter root will not normally damage a concrete footing constructed to Australian Building Standards
4. If roots are, in fact, growing through or under the internal retaining wall, and up towards the boundary wall, and causing physical damage, substantiating evidence needs to be provided to the court, particularly when the observed crack pattern on the wall, near where roots are most likely to be present, is indicative of subsidence, rather than uplift.
5. This opportunity was missed by the applicants. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said "…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…"
6. No excavation was undertaken, no roots were found, and thus no valid evidence displaying the causal link between the tree roots, and the boundary retaining wall damage has been submitted in order to advance the applicants case beyond a theoretical possibility.
Therefore, with s 10 not satisfied, with respect to damage or injury, I have no jurisdiction under s 7 of Part 2 of the Act, to make any orders for intervention with the tree.
As this application is thus set aside, there is no requirement to consider the discretionary matters in s 12.
[6]
Orders
The Court orders that:
1. The application is dismissed.
[7]
Amendments
30 October 2020 - Correction to coversheet.
30 October 2020 - Amendment to Jurisdiction on the cover sheet - correction from "Class 1" to "Class 2".
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Decision last updated: 30 October 2020