Sczepanski v O'Brien

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: This application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerns a Willow Gum located in the south-eastern corner of the rear yard of a property in Conroy Crescent at Kariong. 2 At the commencement of the hearing, an application was made by Mr O'Brien, the owner of the tree, that, of the two Commissioners appointed by the Chief Judge to hear and determine the application, one of us - Acting Commissioner Hewett - should recuse himself from taking any further part in the proceedings. 3 The possibility of such an application had been foreshadowed in the papers filed by Mr. O'Brien in response to Mr. Sczepanski's application. I had discussed with Acting Commissioner Hewett, prior to the commencement of the hearing, whether there was any basis upon which he considered he should recuse himself from the proceedings. He indicated to me that he did not consider that there was any such basis and that his contact with Mr. Mark Bury, Mr O'Brien's consulting arborist had purely been in a professional capacity whilst he (Acting Commissioner Hewett) had been employed as the City Arborist at Newcastle City Council. 4 At the commencement of the on-site hearing I indicated that position to Mr. Sczepanski and Mr. O'Brien. I gave Mr. O'Brien the opportunity to consider whether he wished to make some submission that Acting Commissioner Hewett remove himself and the basis for it. Mr O'Brien made such an application - the basis of it was an assertion to Acting Commissioner Hewett and me by Mr. Bury that, some time in the past, Acting Commissioner Hewett had physically assaulted Mr. Bury. 5 In response, Acting Commissioner Hewett and I withdrew to enable the Acting Commissioner to consider his position in light of this assertion. 6 After doing so, Acting Commissioner Hewett made the following statement (which I now place on record in this judgment): I reject entirely the allegation that I have been involved in any physical exchange with Mr. Bury. The last occasion I had any contact with Mr. Bury was during my tenure as City Arborist at Newcastle City Council in 2005. I have had no further professional contact with him (apart from seeing him at professional seminars from time to time) and I know no reason why my participation in these proceedings would disadvantage his client.

However, the mere making this allegation (unfounded though it is) at the commencement of an on-site hearing where the proceedings are not recorded means I have come to the conclusion that, to protect myself and to protect the Court, I should take no further part in the proceedings. 7 Having made that statement, Acting Commissioner Hewett withdrew and has taken no further part in the proceedings. 8 After that occurred, I inspected the retaining wall on Mr. Sczepanski's property that is said to be damaged by the roots of the tree. I inspected the retaining wall along the length of the retaining wall and I inspected a further retaining wall that runs in a north-south direction (generally at right angles to the retaining wall that is the subject of this application). 9 Mr. Sczepanski's application is for orders that the owner of the tree: o remove the tree; and o pay the sum of approximately $9,600 quoted as the costs of reinstating the retaining wall. 10 During the course of the site inspection, I drew to the attention of those participating the fact that, in addition to there being a linear displacement of the top of the retaining wall in the vicinity of the tree, there was also a rotation of the retaining wall in a vertical plane in an outward direction away from the location of the tree. I also drew the parties' attention to the fact that there was a slight bow in the second, north-south running retaining wall. 11 We then undertook an inspection of the tree on Mr. O'Brien's property and, over the fence, I was able to observe (as I had earlier observed on Mr. Sczepanski's property) that there were roots from the tree in the vicinity of the top of the retaining wall. It was Mr Bury's opinion, expressed during the course of his on-site evidence, that he accepted that the cause of displacement of the retaining wall was the existence of the tree's roots but this had only occurred because of inadequate construction of the wall. In addition, he also suggested that I should have regard to the nature of the soil and that the retention of moisture in the soil might also be contributing factor. 12 I have had regard to all of those matters. 13 For the Court's jurisdiction to be enlivened, I need to be satisfied that at least one of four jurisdictional tests set by s 10(2) of the Trees Act is satisfied - that is whether the tree has caused; is causing; or is likely in the near future to cause damage to Mr. Sczepanski's property or whether the tree is likely to cause injury to any person. 14 I am satisfied, on the basis of my observations, that the first of those jurisdictional tests has been satisfied - that is that the tree has caused damage to Mr. Sczepanski's property. As consequence of that, I am obliged to consider a range of other matters under the Trees Act before I determine, as a matter of discretion, what orders (if any) I should make pursuant to s 9 of the Trees Act. 15 In that regard, I make a number of further observations. The first is that Mr. Sczepanski, on uncontradicted evidence, commenced to occupy his property in the latter part of 2009 and that there have been some discussions (although inconclusive) between him and Mr. O'Brien during the intervening period. I am therefore satisfied that there is no disentitling time delay by Mr. Sczepanski in bringing this application. 16 The tree itself appears to be (and this is confirmed by Mr. Bury's evidence) an otherwise healthy tree - although there are minor elements of dead wood on the side of the tree closest to Mr. Sczepanski's property that may indicate some minor stressing in that regard because of the lack of ability to expand the roots in that direction. That, however, does not appear to have compromised the health of the tree and there is nothing about any of the upper portions of the canopy of the tree nor of the trunk itself that would cause me to conclude that there is any reasonable likelihood or risk in the near future of the tree failing. 17 The matters that I need to deal with concerning the tree entirely relate to the question of its impact on the retaining wall on Mr. Sczepanski's property. 18 There are a number of relevant matters that I observed concerning the retaining wall and the adjacent retaining wall running at right angles to it. The first is that in the adjacent retaining wall that runs at right angles, although not constructed on a perfectly straight line (resulting in a minor bow in the centre of that wall) is the same height as the height of the section of the wall that is the subject of the claim and is a retaining wall that retains exactly the same soil type as is retained by the retaining wall that is the subject of the application. This other wall has no vertical rotation although there is a slight bowing as earlier observed in the north-south running section of wall. 19 Second, the wall that is adjacent to the tree has, as earlier noted, not only been displaced and subject to some significant cracking and bowing but has also rotated in the vertical plane in close vicinity to the tree. 20 Third, I observed that, at the foot of each of the two retaining walls, there is a modest dish drain some 300 mm wide and I also observed that there were weepholes (including exploring these holes with a section of stick) constructed in each of the retaining walls at intervals no greater than the perpendicular joint between every third block in the lowest course of the walls. 21 Fourth, I also observed that each of the cores of the Besser blocks that construct the wall have been filled with concrete and that is consistent with an acceptable responsible building practice for the construction of a wall of that type and height. Although I do not have any specifications for the wall provided by Mr. Sczepanski, I do not consider that there is any basis that I could conclude that the wall has been inadequately constructed nor do I have any basis upon which I could conclude that, at the time it was constructed, it was not constructed in a vertical plane although it may not have been (as can be seen from the lowest course) constructed in a perfectly straight line - this being consistent with the other wall to which I have referred. 22 I am therefore satisfied that I should conclude as follows: o first, there is no inappropriate construction of the wall that would cause me to conclude that the wall bears the responsibility for its own failure rather than the tree; and o second, the location of the tree and its roots is the sole contributor to the failure of the wall. 23 Having said all that, however, I am not satisfied that the wall is in imminent danger of collapse. There is no doubt that there is an aesthetic disbenefit in leaving the wall as it is and there is a reasonably held apprehension that at some stage in the future it may fail but there is no engineering evidence at this stage that it is in imminent danger of collapse. 24 However, it is reasonable to assume that, if something is not done to address the cause of the present extent of failure of the wall, it is likely at some stage in the future - although not necessarily in the near future - that the wall will fail completely. I am therefore satisfied that, on the basis of preventing further damage to the wall, it is appropriate to order the removal of the tree but I am not satisfied that it is necessary to order reinstatement of the wall. 25 Having reached that conclusion, I deal with two further matters. 26 A second element of the claim made by Mr. Sczepanski is based on what he considers to be the unacceptable deposition of leaves, small twigs and other detritus from the tree onto his property from the tree. First, as a matter of jurisdiction (as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 at paras 171 and 172), the mere deposition of material does not cause damage and enliven the Court's jurisdiction under the Trees Act as, as a consequence of that I have observed, there has been no actual damage to Mr. Sczepanski's property from the deposition of such material. If I am wrong on that point, the principle adopted by the Court with respect to trees in an urban environment - enunciated in the case of Barker v Kyriakides [2007] NSWLEC 292 - that those persons who have the benefit of trees in an urban environment (this being a benefit that is both environmental and aesthetic) can be expected to undertake ordinary routine maintenance of their properties to cope with minor detritus falling from those trees. As a consequence, I would not, as a matter of discretion, make any order for intervention with or removal of the tree because of the deposition of such material. 27 The final observation I make, before pronouncing the orders in this matter, is that, as a consequence of amendments to the Trees Act that came into effect earlier this year, the mere removal of a tree no longer raises a barrier to a claim with respect to damage caused by the tree. Although I am of the view that the removal of this tree is likely to prevent any further damage being occasioned to Mr. Sczepanski's retaining wall and that, as a consequence - although there will be an aesthetic detriment, there will be no physical risk in my assessment - if that position were to change that change of position would enable Mr. Sczepanski to make some further application to the Court at that time (see Hinde v Anderson and anor [2009] NSWLEC 1148). 28 As a consequence of the foregoing, the orders of the Court are: 1. the Willow Gum in the south-eastern corner of Mr. O'Brien's property is to be removed at a point 600 mm above ground level (but the roots are not required to be removed nor the stump ground); 2. the remaining stump is to be poisoned to ensure that there can be no residual or epicormic growth; 3. the tree is to be removed within 90 days of the date of these orders; 4. the removal of the tree is to be at Mr. O'Brien's cost; 5. Mr. Sczepanski is to permit access through his property for the purpose of removal of the tree, if required, with such access to be on reasonable notice, at a reasonable hour of the day and Mr. Sczepanski is to have the opportunity to supervise the access if it is being exercised; 6. the tree removal and poisoning is to be undertaken by an AQF Level 3 arborist with appropriate WorkCover insurances. Tim Moore Senior Commissioner

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