Golden v Li

[2022] NSWLEC 1450

Land and Environment Court (NSW)|2022-05-26

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-05-26

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

JUDGMENT

COMMISSIONER: Patrick Golden, the applicant, shares a side boundary at his Turramurra property with the respondents, Bin Li and Jing Zhang. Mr Golden lives at his property, while the respondents lived at their residence from 2012 until May 2020, after which they leased their property to tenants.
Mr Golden has a stabilised loam tennis court in the rear of his backyard extending to the common property boundary, which runs from south-east at the street frontage to north-west at the rear. The court is about 50 years old. The parties' land slopes down towards the rear of their blocks, such that the retaining wall on which the applicant's tennis court is based increases in height, and may splay-out into the respondents' land towards the rear of the court. In this area the retaining wall foundation appears to be formed from roughly assembled rocks, which the applicant submitted may be supported on natural bed rock, but he provided no evidence to support this claim.
A Pittosporum undulatum (Sweet Pittosporum) (the tree) has grown amongst the loose retaining wall components near the rear of the court, most likely from a self-sown seed. This species of pioneer plant generally grows rapidly, especially when availed with fertile clay soils and plentiful rainfall characteristic of Sydney's upper north-shore.
Mr Golden claims that the tree has caused damage to the retaining wall and to his tennis court, and seeks compensation for required repairs. At Mr Golden's request, Mr Li organised and paid for the tree to be removed, but Mr Li rejected Mr Golden's claim for repairs to the retaining wall or tennis court, on the basis that evidence of such damage is negligible, and any deterioration of condition should be considered as 'normal wear and tear'.
As a consequence, Mr Golden submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking compensation for damage to his property as a result of the Pittosporum tree.

[5]

Jurisdictional requirements

The dispute between these parties has been protracted and somewhat complex. In Golden v Li [2021] NSWLEC 1751 ("Golden"), Mr Golden submitted an application for removal of a Brush Box tree on the respondents' land as a result of refuse dropping on the tennis court from overhanging branches and of alleged damage to the court's retaining wall due to the tree's roots. The Brush Box is about 4 metres (m) from the common boundary wall, and about 20m south, south-east of the Pittosporum tree.
Although Galwey AC refused that application, the respondents brought it to the attention of the Court, claiming that this current application is related to, or is an extension of Golden.
When the Court has made a decision on a tree application, even if the application was refused, it is possible for an applicant to make a subsequent or fresh application. However, a fresh application can only be made if the circumstances have changed since the Court determination of the earlier application (see Hinde v Anderson [2009] NSWLEC 1148).
However, it is not possible to make a further application if the circumstances have not changed. If the nature of the application remains the same but new or different evidence has come to light to support the application, such application cannot be successful if the new evidence is evidence that could or would have been available at the time of the original hearing (see McCallum v Riordan & anor [2011] NSWLEC 1009).
Certainly, Mr Weber's report of 29 January 2022 contains extensive reference to the Brush Box tree that has no relevance to this application. On face value, such focus on the Brush Box in a report revised and dated eight weeks after the completion of Golden may appear to be an attempt to conflate the two cases.
I am, however, satisfied that the cases are relatively unrelated, regardless of a relationship between the tennis court retaining wall and each of the two trees. The trees are physically separated, as are their circumstances, and it is thus reasonable for this separate application to proceed.
With respect to s 7, 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 of the Trees Act which provides: 10. Matters of which Court must be satisfied before making an order (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.
The applicant provided evidence that the provision under s 8(1)(a) of the Trees Act, which requires the applicant to serve notice to the respondent more than 21 days prior to the proceedings, has been satisfied.
The applicant has also satisfied s 10(1)(a) of the Trees Act which requires a party to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. The Tree Dispute Application filed with the Court on 10 March 2022 attached copies of correspondence showing attempts made to resolve the dispute directly with the respondents, and particularly via their property agent, over a protracted period.
The next major test that is posed, by s 10(2) of the Trees Act, which states: … (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.
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.

[6]

Retaining wall damage

The parties were polarised. Mr Golden claims the tree has damaged the retaining wall and tennis court. He seeks to have the retaining wall rebuilt and repair of the tennis court to current construction standards, at the respondents' expense. The two quotations the applicant has tendered include large concrete foundations which would result in a wall of far better quality than its original condition.
The respondents claim that the tree has not caused retaining wall damage, that they have nonetheless removed the tree as requested, and that is the limit of their liability.
In a statement lodged with the Court on 22 May 2022, the applicant disputes the impartiality of Mr Weber's report, claiming that he is a friend and close neighbour of Mr Li, and "demonstrates clear bias". He notes that Mr Weber's report fails to satisfy the Registrar's Direction 14 of 20 April 2022, which reads: "14 Expert Evidence (a) Any expert giving written or oral evidence on behalf of a party [or] the local council is to be advised that: 1. Any expert engaged to give opinion evidence in these proceedings has an overriding duty to assist the Court impartially on matters relevant to the expert's area of expertise; 2. Such expert witness's paramount duty is to the Court and not to the person retaining the expert; and 3. Such expert witness is not an advocate for the party who has engaged that expert; (b) Any written expert evidence is to include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005."
I had not seen Mr Golden's statement of 22 May 2022 prior to the hearing and was thus unaware of his aspersions regarding Mr Weber's impartially. As such, I was surprised by Mr Weber's behaviour during the inspection of the tennis court, where I overheard him whispering partisan strategic advice to Mr Li.
During submissions, Mr Weber was writing and passing notes to Mr Li which was not appropriate, and clearly agitated Mr and Mrs Golden. As Mr Weber was disregarding his "paramount duty to the Court" and was acting as an advocate for Mr Li, I reprimanded Mr Weber and clarified his duty to the Court as outlined in the Registrar's Direction 14(b) of 20 April 2022.
While Mr Weber said he had provided acknowledgements of the Expert Witness Code of Conduct or similar when giving evidence in other jurisdictions, he claimed he was unaware of Direction 14, or its requirements, from the Registrar's Directions of 20 April 2022. While this may be so, it seemed disingenuous, at best, that Mr Weber should presume that requirements that applied in other jurisdictions would not apply in this case, particularly to the extent that he could act as an advocate for Mr Li.
Though Mr Weber thus failed in his duty to act as an independent expert, I do not accept Mr Golden's request, in his statement of 22 May 2022, to reject Mr Weber's report in its entirety. I have certainly discounted the value of Mr Weber's evidence and been discriminating in what I have accepted from his oral comments and his report. I agree with Mr Golden that the content of pages 6 - 12 of the report is not relevant to this matter. Nonetheless, drawing on the arboricultural expertise that I bring to the Court, I concur with various of Mr Weber's observations and conclusions.
Mr Weber's report reasonably suggests that the tree may have originated from a bird dropped seed. While this may be so, it appears to have emerged on the respondents' land, and no survey or other evidence was submitted to contradict this appearance.
In commentary to Figure 1 on page 3 of his report, which shows a photo of the tree's roots amongst the wall after the canopy was removed, Mr Weber notes, "There is no vertical structural cracking above the tree root zone consistent with uplifting by roots. This is likely to be because the soft damp sandy clay under the wall has, as the zone of least resistance, yielded to root expansion and invasion. The loose rocks on which the concrete is laid have also allowed the roots to grow into voids without affecting the structure. The wall has been poorly (roughly) constructed. The wall shows no load induced structural cracking. There is some age-related cracking. The rough concrete layer separation is not cracking. It is 'as built' layering. There are at least 3 separate layers of concrete above the tree roots. Each layer is separated by what is known as "a cold joint".
In commentary to Figure 2 on page 4 of his report, Mr Weber adds, "Tennis court border wall showing standard of construction i.e. rough built without a buried footing. The wall is built on loose stones. Concrete is rough laid - apparently without reinforcement. Soil under the wall is soft reactive sandy clay (sic). Soil under the wall has subsided over time".
On page 5 of the report, under 'Comments on the claim for damages', Mr Weber wrote, "The wall has deteriorated because of its age and because it was not properly built. A properly built retaining wall would have a reinforced concrete footing about 400mm deep x 400mm wide with a layer of trench mesh reinforcement top and bottom. The concrete would be poured in 1 stage without cold joints. A course (or courses) of concrete masonry blocks would be laid over the footing. A sketch of an appropriate wall and footing can be provided on request, but it is sufficient to state that the existing wall, as built, was poorly constructed, and its deterioration appears to be normal for its age. The deterioration in the vicinity of the tree is consistent with deterioration elsewhere along the wall where there are no trees".
The second report Mr Li procured from Soar Engineering, dated 22 December 2021, was of little benefit either to Mr Li or to the Court. It provided incorrect information suggesting the stump of the Pittosporum would starve to death due to an absence of leaves and encouraged mulch application to prevent potential sprouts getting started. This would be most unlikely to prevent regrowth. The report concluded that "the remaining roots of this tree aren't capable of causing any further damage to the tennis court retaining wall", but this is incorrect.

[8]

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Trees Act.
Subsection 12 (a). The tree is located close to the common boundary, which is particularly ill-defined towards the rear of the parties' blocks, where the rough stone base of the tennis court retaining wall appears to splay out into the respondents' land. Nonetheless, no survey or other evidence has been submitted to challenge the interpretation of the boundary location, as submitted by the applicant.
Subsection 12 (i)(i). This subsection covers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. General issues concerning this provision are discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paras [204] to [210].
Here, the first relevant consideration is the 'Age and nature of the structure', being the retaining wall and tennis court. I accept Mr Weber's commentary that the wall has been poorly (roughly) constructed on loose stones, without a buried footing, and that the concrete is roughly laid - apparently without reinforcement. The wall is old and has clearly deteriorated and subsided because of its age. Marked subsidence along the rear wall of the court bears no relationship with the tree. A certain amount of wear and tear is expected to arise with any structure over time, and the Court will consider this when determining the extent to which a tree may or may not have caused the alleged damage. Bentley v Hinchen [2008] NSWLEC 1348 (Bentley) provides a retaining wall example.
Though these factors do not compromise the engagement of s 10(2) of the Trees Act, should orders be contemplated, they are considered in the determination of compensation.
Mr Golden submitted that Mr Li had failed to alert him to retaining wall damage caused by the tree. This claim appears to rest on the assumption that Mr Li must have known about the problem much earlier. "Failure to give notice to the tree owner when damage was noticed" is a consideration under ss. 12 (i), but I am not satisfied that this has occurred. On site, Mr Li claimed that he had previously been unaware of the Pittosporum problem, and that there were no reasons or indicators to trigger an inspection of the area. This is not uncommon. The rear of the yard where the tree was located was noted as rarely maintained, and most likely rarely visited. Photos from December 2021 show large weeds growing on the back of the retaining wall. Had Mr Li known that his tree was increasingly causing damage to the boundary wall, I see no reason or benefit for him to withhold such information.
Using the same logic, one could question why Mr Golden had previously not noticed the tree during his normal maintenance inspections. From the appearance of the court, it was rarely used, and visitation was likely rare. This may well be the case for both parties.

[9]

Conclusion

Based on the evidence adduced, I have reached the following conclusions: 1. The Pittosporum tree is a cause of the damage to the applicant's retaining wall, and the jurisdiction of the Trees Act is thus engaged. 2. Having considered subs 12 (i) of the Trees Act, particularly the 'age and nature of the structure', it would not be reasonable for the applicant to gain a new retaining wall which far exceeded the standard and quality of the original wall, at the respondents' expense. The applicant's claim based on his cheapest supplied quotation is for a wall with reinforced concrete footings, and construction standards far better than that of the existing wall. This provides no reasonable basis for the determination of compensation. The difference between the applicant's proposed wall and an outcome based on reasonable repair works for a wall of this age and structural nature is stark, akin to comparing apples and oranges. Therefore, the applicant's supplied quotations fail to provide the Court with a reasonable means of determining a proportion of the repair costs that the respondents should be liable for. 3. As a consequence, determination of compensation for the retaining wall damage as a result of the tree shall be based on quotations for repairs on a 'like for like' basis. This means that the respondents are responsible for the cost of repairing the damaged section of the wall, using materials and construction methods used for the existing wall, and to a completion standard equivalent to that of the current condition of the otherwise undamaged sections of the wall. 4. The respondents shall be liable for the following: 1. Dismantling of the wall around the stump, particularly the loose stone sub-strata, sufficient to remove the stump and clear all roots with a diameter greater than 10mm. Considering the age and nature of the court, there is no reason to clear all roots below this diameter and this should limit the extent of excavation through or under the court surface. 2. Consolidation of the loose base stones into a relatively compacted surface foundation, over which concrete shall be installed to provide a firm base for the wall. It may be possible to support and retain the existing concrete layers above the stump while the stump and main root system are removed, install appropriate formwork, then underpin with concrete to re-support the existing stable concrete layers. Alternatively, if it is necessary to remove and replace existing concrete, the extent of this shall be limited to a maximum of 2 metres either side of the stump. 3. Once a firm concrete base has been re-established by either of these means, the masonry blocks and capping shall be re-instated, and the broken fence fitting/s re-connected to the masonry capping. 4. The area disturbed by the works shall be re-levelled and tidied, and refuse shall be removed. 1. Mr Golden may choose to have the retaining wall rebuilt with reinforced concrete foundations and to current construction standards, but the reasonable limit of the respondents' financial liability does not extend beyond 'like for like' repair and/or replacement. 2. Mr Li sought orders for reimbursement of the cost of reports. Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion with the Court, which is heard before the Registrar, or a judge.

[11]

Orders

The Orders of the Court, as amended, are: 1. The stump of the tree, and its roots above 10mm in diameter, shall be removed from the retaining wall. The retaining wall shall be repaired and/or replaced for a distance of up to 2 metres on either side of the stump, on a 'like for like' basis. The tennis court fence shall be re-attached to the reinstated masonry wall capping, and the area shall be re-levelled and tidied. 2. Within 90 days of the date of these orders, the works in Order 1 shall be undertaken by a licenced builder, or licenced landscaper, with all appropriate insurances. Each party shall procure two itemised quotes for these works, specified on a 'like for like' basis, from contractors who meet the aforementioned requirements. The contractors are to be permitted access to both properties in order to prepare an accurate quote. The scope of works for these quotes (summarised from 42) shall be:

Remove the stump and clear all roots with a diameter greater than 10mm.
Consolidate and re-compact existing loose stone foundation base, over which concrete shall be installed to provide a firm wall base.
Re-instate masonry blocks and masonry capping and re-connect fence fitting/s to the masonry capping.
Re-level and tidy impacted court area with stabilised loam, comprising fourteen parts brickies sand to one part cement and remove refuse. 1. Should the parties not agree on a choice of contractor, the cheapest quote shall be chosen. The party that sought the quote that is the 'cheapest quote' shall procure copies of this contractor's insurances and trade licences and shall supply them by email to the other party, within seven (7) days of the contractor with the 'cheapest quote' being identified and selected. 2. Should one party choose not to procure any quotes for the works, the cheapest price from the maximum two quotes procured by the other party shall be used as the basis for compensation, provided the chosen contractor is appropriately licenced and insured. If either party wishes to contact a contractor engaged by the other party to discuss any matter associated with the quote (including scope of work, cost or timing) the prior written consent of the other party must be obtained. A term of that consent may be that the other party is present for any communication. 3. Within seven (7) days of the completion of the works the applicant shall provide the respondents with a copy of the paid invoice, and within seven (7) days of receipt of the paid invoice, the respondents shall reimburse the applicant for the total of this paid invoice. Should the parties not agree on the choice of contractor (from their quotes per Order 2) and the applicant proceeds with a contractor who has not provided the cheapest quote, the respondents shall be required to reimburse the applicant the total of the cheapest quote. 4. Both parties shall provide access to their properties, should it be required, for contractors to quote and/or undertake these works, upon receipt of at least 48 hours written notice. 5. All works are to be completed during normal work hours. 6. All quotations obtained are to specify that the works are to be completed within 60 days and a start and completion date are to be included in the quotation. 7. Approximately 1 week prior to the completion of the work, the Respondent is to notify the Applicant that the works are approaching completion. 8. Following notification under order 9, the Applicant may inspect the works on the Respondent's property upon giving 24 hours' notice.

[12]

ADDENDUM - 14 December 2023

Mr Golden lodged a notice of motion (NOM), dated 23 August 2023, seeking amended orders, following incomplete execution of consent orders of 7June 2023, made pursuant to the applicant's NOM on 22 February 2023.
In hearing the NOM on 4 September 2023, both parties sought an expedient resolution and more simple orders. Mr Li submitted that the NOM must fail as Mr Golden did not identify the Court's jurisdiction under which the proposed amended orders may be made. Mr Golden's proposed amended orders included unreasonable respondent liability for variation costs beyond the contractor's fixed quote, a compensation claim for stress and inconvenience which is not a remedy available for applications under the Trees Act, and for reimbursement for Court filing fees which Commissioners have no powers to determine. The applicant's proposed orders also contemplated additional works on the court walls and surface at his expense, which, though allowed for in the Orders of 7 June 2023, added uncertainty and made the execution of orders more complex.
Considering all the adduced evidence and the intended outcome of the current orders, I am not satisfied that the amended orders sought by Mr Golden are appropriate or reasonable, but I am satisfied, in response to the NOM, that the Court has power to make alternate orders.
Section 18(g) of the Land and Environment Court Act 1979 (LEC Act) vests the Court with the jurisdiction to hear and dispose of proceedings under the Trees Act, and pursuant to s 30(1) of the LEC Act, the Chief Judge allocated me as the Commissioner to exercise the Court's jurisdiction to determine this matter. This enlivens my power to make orders pursuant to ss 22 and 23 of the LEC Act.
Section 22 of the LEC Act states: Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
Section 23 of the LEC Act provides: Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
The applicant's NOM sought payment of $15,906 from the respondents, based on a quote for the works from Paradise Landscapes, while the most relevant quote provided by the respondent was from J&J Landscapes for $2,750. While the J&J Landscapes quote specified the scope of works, it was procured from a licenced concreter who, unlike a licenced builder or licenced landscaper specified in Order 2 of 7 June 2023, does not necessarily possess the gamut of skills required for the works. This makes the quote of J&J Landscapes non-compliant.
The difference between the parties' submitted quotes is vast but not surprising considering the respondents' desire to minimise their liability and the applicant's reasonable but exacting requirements. With the benefit of the quotes from each party, I am satisfied that the scope of works could be completed adequately by compliant contractors, consistent with the intention of the orders, for a price around the average of the two submitted quotes. The wall's advanced age and inadequate structural nature were considered above at [37]-[39], under s12 (i)(i) of the Trees Act. Based upon consideration of circumstances shared by both cases, I have taken guidance from [13] of Bentley, to determine that the respondents' potential liability should be mitigated by 50% of the total cost of the works, such that the respondents shall be liable for $7,953, being 50% of the cost of the applicant's quotation from Paradise Landscapes.
The resultant amended orders provide a simplified way forward, a "just" outcome in satisfaction s 22 and s 23 of the LEC Act, and they free the applicant to proceed autonomously with completing the works.