Lee v Elford

[2024] NSWLEC 1103

Land and Environment Court (NSW)|2023-10-25

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-10-25

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

presentation: Counsel: B Jee (Agent) (Applicant) N Maddocks (First and Second Respondents)

[2]

Solicitors: Foteades Freeman Cohen (Respondent) File Number(s): 2023/246672 Publication restriction: Nil

[3]

Background

COMMISSIONER: Burwood neighbours Janet Lee (the applicant) and Marie Antoinette Elford (the first respondent) and Ali Abdul-Rahman (the first respondent's husband) share a long common boundary. A brick wall along most of the boundary separates their properties, with a paling fence completing the southern section of the common boundary. The northern part of the boundary, beginning at the street frontage, separates each property's driveway. The southern part of the boundary separates the applicant's dwelling on her battle-axe block from the respondents' rear garden. The respondents purchased their property in 2000; the applicant purchased her property in 2014. The applicant noticed damage to the boundary wall in 2019. The respondents have trees on their property, close to the boundary. The parties have been unable to resolve a dispute over whether the respondents' trees have caused damage, whether the trees should be removed, and who should pay for works including replacement of the boundary fence. Ms Lee applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the trees to be removed, and for the respondents to repair the boundary fence at their cost. The parties agree that the boundary fence needs to be replaced.

[7]

Whether the pear trees have damaged the applicant's property

A survey plan by Gregory Boot from 2008, updated or confirmed in 2022, indicates that the brick wall between the properties is located slightly to the applicant's side of the boundary. Depending on the context, the wall may therefore be considered as the applicant's property. The brick wall leans significantly in places. Where the southern section of the wall kicks slightly westward at a change in the boundary alignment, the two sections of wall have separated.
Mr Phan thought the respondents' pear trees caused the damage, but undertook no investigation to support this conclusion. Mr Jee (the applicant's son acting as her agent) submitted that Mr Phan is a suitably qualified builder who has found that the pear trees damaged the wall. Mr Phan's report lacks any reasoning that logically leads to this conclusion and would not attend the hearing. His report gave little assistance to the Court regarding causation. Mr Phan surveyed the alignment of each pillar along the brick wall and quantified their degree of displacement. All piers along the wall were displaced.
Mr Freeman, the arborist engaged by the respondents, wrote on p 20 of his report (in Exhibit 1): "The existing common brick boundary wall, (age and heritage unknown) does have some sections that are leaning and are required to be removed and replaced. Consideration of damage from the planted Manchurian pears were considered, with a section of wall separating as per figure 8. It is inconclusive that this fencing movement is attributed from the site trees, there are other sections of the wall that have Manchurian Pears being in the same age, height, and condition, with no movement or cracking of the boundary wall being evident."
Mr Jee pointed out that Mr Freeman is not a builder or engineer, so lacks the expertise to assess the wall's damage or its causes. Mr Freeman did not survey the wall and based his assessment on visual observations only. I accept that Mr Freeman's evidence regarding the wall's damage is unqualified and provides little assistance to the Court.
Ms Maddocks submitted that the underlying cause of the wall's failure is its poor structure. She said the Court had no evidence to demonstrate that the pear trees have damaged the wall. Some cracks in the wall are not adjacent to the pear trees. Mr Phan identified structural issues with the wall including an absence of expansion joints to accommodate thermal movement.
Mr Jee submitted that the wall's northern-most pier, with no adjacent trees, leans the least. The applicant provided photos from real estate promotional material in 2014, saying this shows the wall was at that time vertical and undamaged. Ms Maddocks submitted that the photos did not show any great detail and were of little assistance. The applicant's evidence was that the wall was already leaning by 2014.
The nature of evidence before the Court does not demonstrate causation of the wall's damage. However, I observed during the onsite view that some cracks in the wall align with the most probable locations of roots of some of the pear trees. The proximity of pear trees to the most severe areas of damage is itself persuasive. On the balance of probabilities, I find that the pear trees have contributed to the wall's damage but are unlikely to be the sole cause. The wall is possibly more than 50 years old and appears not adequately built for site conditions. Mr Phan identified this and other factors likely to have contributed to the wall's condition. The pear trees' contribution has likely accelerated the need to replace the wall by perhaps, at my estimate, 5-10 years. That the trees have contributed to damage is sufficient to enliven the Court's jurisdiction at s 10(2)(a) of the Trees Act.

[8]

Whether the bamboo has damaged the applicant's property

The boundary brick wall is also leaning to the east adjacent to the ghost bamboo (B1). Considering its proximity to the wall, and its contact with the wall in places, I am satisfied that this bamboo has contributed to the wall's condition. Here, too, the wall's structure is perhaps not to current building standards, but the bamboo has accelerated its need for replacement.
At the base of the brick wall is a stone-and-mortar retaining wall that has cracked but is not significantly out of alignment. The applicant submitted that this too is caused by the bamboo. Mr Phan concluded as much, but provided no evidence or reasoning to support this. On the available evidence, I cannot be satisfied that the bamboo has contributed to this issue.
The slender weaver's bamboo (B2) grows against the paling fence, which leans slightly towards the applicant's dwelling. The fence is functional, but I find its alignment has been affected by the bamboo. This bamboo grows quickly and is likely to damage the fence in the near future.
Below the paling fence is a block retaining wall. A gate attached to that wall no longer closes properly. Mr Jee submitted that this results from the wall being rotated towards the applicant's dwelling by the force of the bamboo. Mr Phan thought this was caused by bamboo, while Mr Freeman found, without explanation, it "…is not attributed to the Bamboo but rather natural movement (expansion and contraction) of the natural ground". With no evidence regarding the wall's structure or the extent of the bamboo's root system, I cannot determine the cause of damage to the low retaining walls and the gate. No orders will be made on this element of the application.
The applicant submitted that debris from the bamboo has damaged her property, resulting in her roof gutters needing to be replaced. If debris has damaged the gutters, that could have been prevented by reasonable property maintenance, as per the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20]. No orders will be made on that element of the application.
I find both groups of bamboo B1 and B2 have caused or are likely in the near future to cause damage to the applicant's property, satisfying the test at s 10(2)(a) of the Trees Act.

[13]

Orders

The Court orders: 1. The application to remove the bamboo is granted in part, as per orders below. 2. The application to remove other trees is refused. 3. The application to replace the dividing fence is granted. 4. The application for the cost of fencing works to be borne by the respondent is refused. 5. Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to: 1. remove the ghost bamboo (B1); and 2. remove all of the slender weaver's bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver's bamboo (B2) within 2 metres of their eastern boundary. 1. The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 2. The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver's bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary. 3. Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) ('the fencing works'). 4. Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents. 5. The applicants are to give the respondent 1 week's notice of the works in Order (9). 6. The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders. 7. The exhibits are returned, other than Exhibit A.

[20]

Mr Jee pointed out that Mr Freeman is not a builder or engineer, so lacks the expertise to assess the wall's damage or its causes. Mr Freeman did not survey the wall and based his assessment on visual observations only. I accept that Mr Freeman's evidence regarding the wall's damage is unqualified and provides little assistance to the Court.
Ms Maddocks submitted that the underlying cause of the wall's failure is its poor structure. She said the Court had no evidence to demonstrate that the pear trees have damaged the wall. Some cracks in the wall are not adjacent to the pear trees. Mr Phan identified structural issues with the wall including an absence of expansion joints to accommodate thermal movement.
Mr Jee submitted that the wall's northern-most pier, with no adjacent trees, leans the least. The applicant provided photos from real estate promotional material in 2014, saying this shows the wall was at that time vertical and undamaged. Ms Maddocks submitted that the photos did not show any great detail and were of little assistance. The applicant's evidence was that the wall was already leaning by 2014.
The nature of evidence before the Court does not demonstrate causation of the wall's damage. However, I observed during the onsite view that some cracks in the wall align with the most probable locations of roots of some of the pear trees. The proximity of pear trees to the most severe areas of damage is itself persuasive. On the balance of probabilities, I find that the pear trees have contributed to the wall's damage but are unlikely to be the sole cause. The wall is possibly more than 50 years old and appears not adequately built for site conditions. Mr Phan identified this and other factors likely to have contributed to the wall's condition. The pear trees' contribution has likely accelerated the need to replace the wall by perhaps, at my estimate, 5-10 years. That the trees have contributed to damage is sufficient to enliven the Court's jurisdiction at s 10(2)(a) of the Trees Act.

[22]

The boundary brick wall is also leaning to the east adjacent to the ghost bamboo (B1). Considering its proximity to the wall, and its contact with the wall in places, I am satisfied that this bamboo has contributed to the wall's condition. Here, too, the wall's structure is perhaps not to current building standards, but the bamboo has accelerated its need for replacement.
At the base of the brick wall is a stone-and-mortar retaining wall that has cracked but is not significantly out of alignment. The applicant submitted that this too is caused by the bamboo. Mr Phan concluded as much, but provided no evidence or reasoning to support this. On the available evidence, I cannot be satisfied that the bamboo has contributed to this issue.
The slender weaver's bamboo (B2) grows against the paling fence, which leans slightly towards the applicant's dwelling. The fence is functional, but I find its alignment has been affected by the bamboo. This bamboo grows quickly and is likely to damage the fence in the near future.
Below the paling fence is a block retaining wall. A gate attached to that wall no longer closes properly. Mr Jee submitted that this results from the wall being rotated towards the applicant's dwelling by the force of the bamboo. Mr Phan thought this was caused by bamboo, while Mr Freeman found, without explanation, it "...is not attributed to the Bamboo but rather natural movement (expansion and contraction) of the natural ground". With no evidence regarding the wall's structure or the extent of the bamboo's root system, I cannot determine the cause of damage to the low retaining walls and the gate. No orders will be made on this element of the application.
The applicant submitted that debris from the bamboo has damaged her property, resulting in her roof gutters needing to be replaced. If debris has damaged the gutters, that could have been prevented by reasonable property maintenance, as per the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20]. No orders will be made on that element of the application.
I find both groups of bamboo B1 and B2 have caused or are likely in the near future to cause damage to the applicant's property, satisfying the test at s 10(2)(a) of the Trees Act.

[29]

(1) The application to remove the bamboo is granted in part, as per orders below.

(2) The application to remove other trees is refused.

(3) The application to replace the dividing fence is granted.

(4) The application for the cost of fencing works to be borne by the respondent is refused.

(5) Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to:

(a) remove the ghost bamboo (B1); and

(b) remove all of the slender weaver's bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver's bamboo (B2) within 2 metres of their eastern boundary.

(6) The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'.

(7) The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver's bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary.

(8) Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) ('the fencing works').

(9) Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents.

(10) The applicants are to give the respondent 1 week's notice of the works in Order (9).

(11) The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders.

(12) The exhibits are returned, other than Exhibit A.

Lee v Elford

At a glance

Court

Decision date

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Judgment (29 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)