Francis v Baronian

APPLICANT Janette Francis, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT Harry and Maria Baronian, litigants in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT The extemporaneous decision was given on 29 April 2009. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: In the backyard of 2 Manna Place, Bossley Park, close to the southern, common boundary with the adjoining property, there is a Cotton Palm in the eastern corner, and a Cocos Palm about half way along the fence. The property 2 Manna Place is owned by Mr and Mrs Baronian. Mrs Baronian attended, and the Baronians were represented at the hearing by Mr Vic Cavasinni. The Baronians have filed a building report by Mr Edward Brincat who is a Civil Engineer, and Mr Brincat was present at the hearing.

2 Mrs Francis is the owner of 1 Manna Place, the adjoining property to the south. She makes an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage caused by the two Palm trees, to prevent injury to people, and seeking compensation. Mrs Francis was present at the hearing and was assisted by her two sons and her ex-husband.

History 3 The Baronians say that their land was vacant when they purchased in 1982, and a timber paling fence stood between them and what was to become Mrs Francis' property. The Baronians built their house in 1985 and replaced the timber fence with a fibro fence in 1986. They say there was no excavation on the adjoining property at that time. They also say that they have not changed the level of their ground, and that they planted the two palm trees in 1988 or 1989.

4 Mrs Francis says that her property was bought in 1990 with the house existing. She says that there was sloping grass up to the fibro dividing fence, and no retaining wall at that time.

5 Mrs Francis also says that she had the boundary surveyed, and found the fibro fence was on her land. At the hearing she provided copies of a letter that her solicitors wrote to the Baronians on 18 February 1993. That letter asks the Baronians to accept quotations for "Adjoining fence which includes a retaining wall to retain your land/soil from our client's property." I understand the Baronians did not accept the terms of the letter, but that Mr Baronian gave some physical assistance in construction of the retaining wall.

6 Both parties agree that the existing colorbond fence is on the common boundary, and that they each paid half of its construction cost in 1993. Mrs Francis says that the retaining wall was constructed prior to the fence, and that the two palms were not present when the wall and fence were constructed.

7 A house extension including garage was built on the eastern end of the northern side of Mrs Francis' house in 1994-5, and Mrs Francis' driveway adjoining the eastern side of the Baronians' property was excavated about 1 m below existing ground level at the south-eastern corner of the Baronians' backyard. Later, a large metal roof awning was constructed on Mrs Francis' property, from the northern wall of her house to the dividing fence, and the area under it was concreted. The concrete under the awning is generally level with slight fall to control drainage, and the eastern end meets the level of the driveway.

Orders sought by Mrs Francis 8 Mrs Francis seeks orders that the Baronians: 1. Remove the entire tree and tree root systems of both the Cotton Palm and the Cocos Palm; 2. Replace the damaged sections of retaining wall back to original horizontal position and ensure adequate drainage system is installed; 3. Repair/replace the damaged colorbond fencing to original horizontal position behind retaining wall; 4. Repair damage to house awning at 1 Manna Place caused by the Cocos Palm where roots of the tree have lifted the colorbond fence hard up against the house awning; 5. Replace all damaged concrete sections on 1 Manna Place directly up to the retaining wall once wall and fence repairs have been completed by a qualified tradesman; 6. All the work to be completed within 30 days; 7. Provide a structural engineer's "Certificate of Safety" at completion of the work; 8. Reimburse all cost associated with the application and future court proceedings and lost paid time off work.

Considerations under the Act 9 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

10 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

11 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

12 I have read the material on the file, heard the evidence and submissions given by both parties and Mr Brincat, and looked at all they wished to show me regarding the trees, fence, wall, ground and other structures on both properties.

The trees 13 Each of the two Palm trees has a trunk 3 - 4 m high and 0.3 - 0.4 m in diameter. These are not large or tall trees. They appear to be in good health, but slow growing for their species. They are growing close to the dividing fence, and part of each of their fibrous root system is visible above ground.

14 As the trunks of both trees are entirely on the Baronians' side of the fence, I find that the trees are situated on adjoining land in accordance with s 7 of the Act.

15 I note that the parties disagree on whether the trees were growing in their present positions when the retaining wall and colorbond fence were constructed, but find that agreement on that point is not necessary for resolution of the application. The colorbond fence 16 I find that the colorbond fence is on the common boundary on the basis that Mrs Francis claims she had the boundary surveyed prior to construction of the fence, and each party paid half of the fence construction cost in 1993. Also, at the hearing both parties agreed that the fence is on the boundary, and Mrs Francis pointed to the position of the boundary at the centre of the most eastern fence post.

17 At the hearing we observed that the fence runs reasonably straight from east to the west along the common boundary. We also observed that the top capping of most panels of the fence, including the panels beside the trees, were aligned horizontally. However, we observed that the two panels between the trees slope down to their shared central post which appears to have sunk. On that basis I find that the trees have not damaged the fence. Also, it may be that the trees will damage the fence at some time in the future, but I do not find that damage is likely in the near future. Therefore the trees do not meet the tests in s 10(2)(a) of the Act with regard to the fence. Further, I find that damage to the fence has been caused by failure of the retaining wall, causing movement of soil behind that wall where the fence posts are located. The retaining wall 18 As the retaining wall is entirely on Mrs Francis' side of the fence, I find that the retaining wall is the property of Mrs Francis.

19 Mrs Francis claims that the retaining wall was constructed to support raised ground levels in the Baronians' backyard, however, the Baronians refute this. I observed that ground levels at the western end of the Baronians' yard were largely identical to adjacent ground on the adjoining public walkway, and that ground level at the eastern end appears unchanged around the base of an old, dead tree stump. Additionally, Mrs Francis advised that there was sloping grass and no retaining wall on her land when she moved into her house in 1990, and that her driveway east of the Baronians' backyard was excavated in about 1994. I observed that Mrs Francis' driveway has a retaining wall almost 1 m high to the Baronians yard, and that the driveway below the south-eastern corner of the Baronians' yard is at a similar level to the concrete of her backyard beside the retaining wall subject of this application. On that basis, I find that the retaining wall was built mostly if not entirely to hold the bank created by excavation on Mrs Francis' property, and the Baronians have not carried out any significant filling of their backyard.

20 We observed that the retaining wall is constructed of sawn hardwood timbers of about railway sleeper dimensions, but the timbers are not old railway sleepers and are not treated pine timber.

21 We observed that part of the fibrous root system of each tree is visible behind the timbers of the retaining wall. We also observed that the top of some panels of the eastern end of the wall have moved away from the fence by about 0.1 m but those panels were not directly beside either tree.

22 We also observed some roots of the Cotton Palm in gaps between the timbers of the retaining wall, but no evidence was provided that the roots have caused the gaps or spread the gaps.

23 Mr Brincat showed us that the most eastern post supporting the retaining wall has not moved. He also pointed out that the spaces between posts at the eastern, taller end of the wall are 1.2 m except for the last panel near the Cocos Palm which is 2.4 m and the last post of that section is installed flat rather than perpendicular to the wall. He explained that the weaker construction of the wall panel near the Cocos Palm was the reason for greater failure of that panel.

24 Mr Brincat also showed us the large area of roofing on the northern side of Mrs Francis' house and the metal awning, which run into roof guttering along the common boundary. He explained that the roof water would be too much for the gutter and downpipes, and that water would overflow onto the ground behind the retaining wall. He also pointed out a junction in the guttering that overlapped the wrong way and had water staining indicating that water leaked from there onto the retaining wall. He then showed us decayed timbers in the horizontal and vertical elements of the retaining wall.

25 I find on the basis of these observations and explanations, that the most significant cause of damage to the retaining wall is decay and failure due to its materials, method of construction and the passage of time. However, by the growth and pressure of their roots, both trees are likely to have been a minor cause of bowing out of sections of the retaining wall. On that basis both trees meet the three tests in s 10(2)(a) of the Act, and I am able to make orders regarding them.

26 I do not find that either tree is likely to cause injury as they are not large trees, and unless the retaining wall was to fail, the trees are not likely to fall. Considerations under s 12 of the Act 27 Under s 12 (e) of the Act, I note that the trees make some contribution to the scenic value of the property, provide some screening between the properties, and make a small contribution to the scenic value of the surrounding local area which has few trees.

28 Under s 12 (g) of the Act, I note that the roots of the trees are likely to provide some stability to the nearby soil, but may not be sufficient to support the Baronians' backyard if Mrs Francis' retaining wall was to fail or be removed.

29 Under s 12 (h)(i) of the Act, I note that the problems that Mrs Francis has with the fence and retaining wall, and her concerns about damage or injury from the trees, are caused substantially by the condition of structures on her own property and by her own making.

30 Under s 12 (h)(ii) of the Act, I note that the Baronians offered at the hearing to pay the cost of removal of the trees so that repairs to the fence and wall can be carried out more easily and cheaply and without fear of collapse of the trees. I find that the loss of the trees and the cost of their removal is a significant contribution by the Baronians, and they should not be ordered to make any further contribution to repair of the fence or repair or replacement of structures on Mrs Francis' property.

31 Under s 12 (j) of the Act, I note that Mrs Francis first gave notice of the problems in a letter dated 8 July 2008, and her application includes photographs of the damage taken on 3 August 2008. Comparing the photographs and the visible damage at the hearing, there is no discernable difference. On that basis, as no further damage has occurred since notice was given, again I find that the Baronians are not liable for any costs of repair.

32 Also under s 12 (j) of the Act, I find that Mrs Francis' concerns regarding the need to repair the retaining wall and fence and to remove the trees were not reduced after examination and discussion at the hearing. In fact, towards the end of the hearing she confirmed her claim that all the works should be carried out at the Baronians' cost within 30 days.

33 I find that removal of the trees is the first action necessary in the process of repairs to the retaining wall and fence. I also find that the trees will be unstable if the retaining wall is demolished for rebuilding. As the Baronians have offered to remove the trees, I will order that work to be done at their cost so that the work on Mrs Francis' property can also be done.

34 Removal of the trees would serve no purpose, and would simply be a cost and loss of amenity to the Baronians unless the repairs to the fence and retaining wall are carried out.

35 I find that the repairs to the fence and retaining wall should be done at Mrs Francis' cost as they result primarily from failure of her retaining wall with only a minor contribution from the trees. I find that Mrs Francis should be ordered to carry out the works because I fear that she might otherwise not carry out the works in a reasonable time-frame. Claim for compensation 36 In response to Mrs Francis' claim for costs; Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses including personal expenses. Claims for these costs must be made by a Notice of Motion which is heard and determined by a Judge. Orders 37 The application is upheld in part, and the Court makes the following Orders that apply to 1 Manna Place Bossley Park and 2 Manna Place Bossley Park: a. The Baronians shall remove the two Palm trees by 31 May 2009, at their cost; b. Mrs Francis shall repair or replace the retaining wall, and repair the fence by 31 August 2009, at her cost; c. The retaining wall and its drainage elements shall be entirely on Mrs Francis' property. The work shall be done in fit materials by qualified tradespeople, with site management in accordance with WorkCover procedures; d. Mrs Francis shall provide to the Baronians by 30 September 2009 a certificate from a suitably qualified engineer, stating that the retaining wall is adequate for purpose.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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