Jones & anor v Stephenson

The Part 2 application

1. The applicants contend that a root or roots from one or more of the trees has/have penetrated a retaining wall and has/have probably caused damage to a water feature. In oral submissions they are also concerned that roots from the tree may damage the footings of their dwelling.

Relevant background

1. The applicants purchased their property in 1993.
2. The applicants rely on a letter written on 2 December 1980 to the builder of the dwelling from a chartered engineer. It would appear from the letter that the engineer inspected the drawings and specifications for the proposed kit home but did not inspect the site as the engineer states "We have been told that the site consists of a rock shelf on which it is proposed to construct concrete levelling strips and to build 230mm thick brick walls off these strips to contain granular fill of maximum depth 600mm above the top of the levelling strip. A reinforced concrete slab is to be laid on top of this fill in the enclosed area of the ground floor, but not the garage."
3. The engineer certifies that a reinforced concrete slab constructed as shown on the sketch in a letter to council [but not tendered by the applicants] would be structurally adequate provided that a number of specific actions are followed. The specifications refer to two aspects of the proposed construction: the reinforced concrete slab on which the house was to be constructed; and a brick retaining wall at the eastern end of the site [emphasis added] which was to have a maximum height of 1200mm. Notes 5 and 6 for the retaining wall state: 5. All walls should have a 2 course thick brick footing 120mm wider than the wall it supports, or a concrete levelling strip as specified above [for the dwelling slab]. 6. It is noted that the wall is not permitted to have weep holes and that the fill behind the wall is level.
4. About ten years ago the applicants built a concrete block wall approximately 1.8m high on top of the low brick wall on the common side boundary alongside their dwelling. The brick wall and the concrete wall are wholly on the applicants' land. The common boundary is fenced with a 1.8m chain wire fence with metal poles. This fence is visible from the respondent's property. The metal poles are secured to the masonry wall with brackets, one of which has failed near tree 9.
5. Between the concrete block wall and their dwelling, the applicants constructed a long and elevated water feature using concrete blocks and concrete. While neither of the applicants are builders or engineers they said they were assisted by a relative who is in the building industry and that the wall was reinforced.
6. At some stage the water feature began to leak.
7. The application form includes a number of photographs. Of the set filed with the Court, the only two photographs are marked as '1A' and '1B' although the application claim form refers to photos 1-6. The applicants did not have other copies of the photographs available during the hearing however additional photographs were made available by the respondent.
8. A photograph provided by the applicants, shows fine, white, fibrous roots that were growing through the retaining wall and into the water of the water feature. Another photograph (1A) shows a small woody root growing through poured concrete in the western part of the water feature; another (1B) shows a wet patch and surface roots from one or more of the conifers on the respondent's side of the wall; allegedly near the source of the leak. Other photographs are of roots exposed in the applicants' backyard to the east of the dwelling, which they contend are from one or more of the respondent's conifers.
9. Although they have no certification, the applicants maintain that the retaining wall was built according to the engineer's specifications, that is directly onto the underlying rock and that the roots have somehow penetrated this wall. They stated that they had dug a hole near the wall towards the rear of their yard and the wall went to the sandstone; however, that hole had been filled in prior to the hearing.

Jurisdiction

1. In applications under Part 2, the key jurisdictional test is found in s 10(2). This 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.
2. Injury is not pressed.
3. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing.

Observations

1. At the time of the on-site hearing, the water feature had been repaired.
2. From the respondent's side of the common boundary I observed the low brick wall on which the applicants built the concrete block wall. As the applicants' land slopes to the east, the relative height of the brick wall increased. I saw no obvious defects in that wall and it appeared in good order.
3. In the vicinity of the water feature, the brick wall is very low and the concrete block wall overhangs the brick wall. Between the chain link fence and the brick wall, and beneath the concrete wall is loose rubble. I observed a Jasmine vine growing from the applicants' property over the wall. I noted some other small plants such as self-sown ferns growing in cracks in the mortar beds between the concrete blocks. The concrete wall was not rendered on the respondent's side but rendered on the applicants' side.
4. As neither party engaged an arborist to provide independent evidence, the following comments are based on the arboricultural expertise I bring to the Court. The trees are approximately 1.5-2m from the boundary.
5. Tree 1, the Photinia is in poor to fair condition with a thin canopy. There were some surface roots visible in the vicinity of the common boundary; some appear to have been deflected by the wall.
6. The conifers are in good condition. I observed some surface roots in the vicinity of the common boundary. The Lillypilly is engulfed by the conifers but appears to be in reasonable condition.
7. The willow has partially failed onto the respondent's property and away from the wall. The type of failure is known as 'wind-throw'. There does not appear to be any actual damage to the wall although the applicants pointed out the dislodged metal bracket holding a metal pole of the chain wire fence to the wall. Notwithstanding the fact that the chain mesh fence is behind the masonry wall constructed on the applicants' property, I found it to be secure and functional.
8. I observed a large and exposed rock shelf on the western side of the applicants' dwelling. Apart from isolated areas, the majority of the developed portions of the parties' properties were vegetated indicating a degree of soil depth.

Findings

1. While I accept that a photograph shows a root that appears to be from a conifer penetrating some concrete that is allegedly part of the water feature wall, there is no probative evidence that the root caused the leak. However, I am prepared to accept that the root, which has the characteristics of a root from a conifer, may have been a cause. In Robson v Leischke [2008] NSWLEC 152 at [179], Preston CJ determined that a tree need not be the sole cause of damage in order to engage the Court's jurisdiction.
2. In putting the applicants' case at its highest, I am also satisfied that the roots growing beneath the wall further to the east are roots from one or more of the conifers. Whilst there is no evidence to suggest that these are likely to cause damage to the applicants' dwelling, it is likely they could cause damage to the wall.
3. As stated above, there does not appear to be any damage to the wall as a consequence of the dislodged bracket and there is no probative evidence that this was caused by T9.
4. Therefore, I am satisfied to the extent required by s 10(2)(a) that the Court's jurisdiction under s 9 of the Trees Act, to consider what, if any, orders should be made. In making this determination, I must have regard to relevant matters in s 12 of the Trees Act.
5. Most relevant in this matter are s 12(b3) and (e) - amenity and other values for the respondent, and s 12(h)(i) - other likely contributory factors and the actions of the parties.
6. The respondent values the trees for the privacy they afford his property, their landscape value and their benefits as a windbreak.
7. As mentioned above, the applicants are relying on a letter written in 1980 by an engineer, presumably to the original owner of the applicants' property or the builder. The letter talks about a wall at the eastern end of the site and not along the northern boundary. The assertion that the retaining wall below the recent masonry wall was built on concrete strips attached to the underlying rock is not proven. I observed the wall built by the applicants to significantly overhang the low brick wall. There is no evidence, such as Building Certificate/ approved plans prepared by a structural engineer, certifying the integrity of the wall and the water feature. It is entirely possible that the construction of the wall allowed the ingress of a root. As the water feature had been repaired prior to the hearing, the extent of any involvement by the root could not be observed. Given this uncertainty, no orders will be made for any reimbursement, by the respondent, of any costs associated with the repair of the wall.
8. The applicants seek orders for the investigation of any actual or potential damage to the wall. The onus in these matters is on the applicant to prove any actual damage. An opportunity to undertake any necessary investigation is provided by standard tree direction #13 which requires each party to permit access to their property on reasonable notice for the purpose of carrying out inspections relevant to the matter. The applicants did not avail themselves of this opportunity and no orders will be made for any investigation of the wall at the respondent's expense.
9. Despite these findings about the alleged damage to the water feature, with the arboricultural and soil science experience I bring to the Court, I am satisfied that given the presence of roots on the applicants' property and the relatively shallow soils, there is a reasonable chance of future damage being caused to the wall by the roots of the conifers. In my view, the installation of a root barrier on the respondent's side of the common boundary, would be prudent at this stage and should prevent future damage, and hopefully limit any further actions by the applicants. Orders will be made requiring the respondent to install, or have installed, on his land, a root barrier to the depth of the underlying sandstone for a length of two metres to the west of T2 and three metres the east of T8. The root barrier is to project 100mm above ground in order to prevent roots growing over the top of the barrier.

Part 2A application

1. The applicants contend that the trees are severely obstructing sunlight to two windows of their dwelling. Window 1 (W1) is an east-facing, ground-floor, living room window near the north-western corner of the house. W2 is a north-facing, first floor glass brick window of another living room.
2. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
3. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge?
4. The respondent states that the conifers were planted in 2006 but the others were present when the applicants purchased their land. The applicants have not provided any evidence to refute this.
5. I am satisfied that the row of Leyland Cypress comprises trees to which the Part applies.
6. The key test in applications made under Part 2A is found in s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
7. The applicants have not provided any shadow diagrams but have included several photographs of the shade created by the trees; however, the photographs are not date and time stamped. Apart from some shading by the respondent's Leyland Cypress trees, W1 is clearly shaded by the upper floor balcony. It is also possible that this window is shaded by the wall on their boundary.
8. Despite the weakness of the evidence, given the height and proximity of the trees, I am satisfied that the closest conifers severely obstruct sunlight to W2 and therefore s 14E(2)(a)(i) is satisfied for this window.
9. In balancing the interests of the parties inherent in s 14E(2)(b), the respondent is concerned about maintaining his privacy and the amenity the trees provide, which in my view is reasonable given the proximity of the applicants' two storey dwelling to the respondent's property and possible overlooking from the upper floor balcony. I also note that the trees were planted after the applicants purchased their dwelling which presumably included W2.
10. With the expertise I bring to the Court, I note that this species is tolerant of reasonably heavy pruning; however, the suggested height of 2.5m is excessive and unreasonable. A number of other Leyland Cypress on the respondent's property have been pruned and have responded well. Orders will be made for the pruning of trees 2, 3 and 4 to a height level with the bottom of W2; and their annual maintenance to this level. This will improve sunlight to this window; the retention of the remaining trees will maintain the respondent's privacy.

Conclusions and orders

1. As a consequence of my findings, the Orders of the Court are: 1. Within 12 months of the date of these orders, the respondent is to install, or have installed, a root barrier on his land. The root barrier must: 1. Be constructed of an impervious material to the depth of the underlying sandstone rock and project at least 100mm above the surface of the soil; any joins in the material must be completely sealed and made impervious to root penetration; all roots must be cut cleanly; all backfill must be fully compacted; 2. Be constructed at least 200mm from the common boundary so as to avoid any impact on the wall but at least one metre away from the base of any tree; 3. Extend at least two metres to the west of Tree 2 and three metres to the east of Tree 8. 1. The application for investigation of the wall and reimbursement of money spent on repair of the water feature is dismissed. 2. The respondent is to engage and pay for an arborist with a minimum qualification of AQF level 3 in arboriculture to prune the Leyland Cypress indicated as trees 2, 3 and 4 on the diagram in the application claim form, being the three conifers closest to Window 2 on the upper floor of the applicants' dwelling, to a height level with the bottom of that window. The work is to be carried out in the month of April 2017 and maintained annually (each April) to that height until such time as the trees are removed.

Judy Fakes Acting Commissioner of the Court

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: 30 January 2017