Stanford v Hall

Background 5The Halls have lived at their property since 1978. Soon after the Stanfords bought the neighbouring property in 1984 the Halls had a garage constructed in the southwest corner of their property. One wall of the garage is on the common boundary with the Stanfords' property. A short section of brick wall was constructed continuing eastward along the boundary from the garage. Mr Hall says that section was built on proper footings. There were bricks left over from the project and the Halls and Stanfords agreed that those bricks should be used to build a further section of wall along the boundary, replacing some of the existing wooden paling fence. This section of wall, approximately 7 metres in length, was built upon an existing sandstone dwarf wall. The wooden paling fence further east remains in place today and is now in a somewhat dilapidated state. 6In or around 1986 the umbrella tree began to grow on the Halls' property adjacent to the section of wall built upon the dwarf wall, near its western end. In 2005 the Stanfords became concerned that this section of the wall was leaning into their property and that it was being displaced by the tree. They informed the Halls. The Halls and the Stanfords each commissioned reports on the wall. Those reports also dealt with other parts of the wall but, regarding this section of the wall, had different conclusions and recommendations. No action to interfere with the fence or the tree was taken by either party. 7In 2011 the Stanfords were concerned that the wall was leaning further into their property and that this was caused by the tree. Again, they wrote to the Halls requesting that something be done. The Halls responded by letter, expressing their opinion that the tree was not causing any damage, that the damage was caused by water tanks on the Stanfords' property, that the wall was in a dangerous condition, and that the Stanfords should immediately repair the wall at their own expense.

Timeline 8A timeline of key events is outlined below.

• 1978: the Halls purchased their property.
• 1984: the Stanfords purchased their property.
• 1984/5: following construction of the Halls' garage, the brick wall along the boundary was constructed.
• 1986: the tree was planted or began growing in its current location on the Halls' property.
• Early April 2005: the Stanfords first noticed damage to the wall.
• 13 April 2005: the Stanfords notified the Halls of their concerns by letter, asking them to remove the tree and repair the wall.
• June 2005: the Halls commissioned a report and sent a copy to the Stanfords on 4 July 2005. The report stated that the section of wall was structurally sound though "8mm out of plum [sic]".
• 11 July 2005: the Stanfords commissioned a report and provided a copy to the Halls on 13 July. The report stated that the tree had damaged the wall and recommended removal of the tree and repairs to the wall.
• No other action was taken by either party for some time, during which the displacement of the wall apparently increased. During this period the parties had some conflict about other issues not related to this matter and did not communicate directly with each other.
• July 2010: the Stanfords installed water tanks on their property adjacent to the wall.
• 15 February 2011: the Stanfords again notified the Halls in writing of their concerns regarding displacement of the wall caused by the umbrella tree, requesting that they repair the wall.
• 6 March 2012: the Stanfords erected bracing against the damaged section of the wall.
• 8 March 2012: the respondents wrote to the Stanfords saying the tree had not damaged the wall; that the Stanfords' water tanks had damaged the wall; that the wall was in a dangerous condition; and that the Stanfords should repair the wall at their expense.
• 12 April 2012: the application was filed with the Court.
• 4 May 2012: the Halls commissioned a further report that identified the umbrella tree as the most likely cause and recommended demolition of the damaged section of wall and replacement with a timber fence.

Observations 9Through observations at the onsite view it was clear that the eastern section of the wall, approximately 7 metres in length, is displaced and leans into the Stanfords' property. Measurements using a spirit level and ruler showed displacement of approximately 70 mm near the top of this section of the wall at its western end, near the umbrella tree. The pillar at the western end of this section of wall has experienced the most displacement. There is some displacement of the top of this section of wall at its eastern end, although this is considerably less. To all present it was apparent that the wall is most severely displaced near the umbrella tree. 10The umbrella tree (Schefflera actinophylla) is approximately 9 metres tall. 11At its base it is adjacent to the boundary wall. It is in fair health - its leaves have been grazed heavily by unidentified creatures. There are several palms, also close to the wall, to the east of the umbrella tree. 12Roots can be seen growing through the gap between the displaced wall and the adjacent section of wall to the west. The roots are clearly from the umbrella tree as they come directly from its base. 13Two water tanks are on the Stanfords' land next to the boundary wall. They are closer to the eastern end of the damaged section of wall, some distance from the western end where displacement is most severe. The tanks are on the ground and are covered by timber screening. 14To the east of the wall the timber paling fence that was present in the 1980s continues along the boundary for another 10 metres or so, ending near the front of the dwellings. 15Cracking of the garage wall is not related to the damaged section of boundary wall and is not part of this claim. 16It was pointed out at the hearing that a tawny frogmouth, a local bird species, was roosting in a Jacaranda tree to the south of the Stanfords' property. 17The tree was viewed from the gardens and rear balconies of both properties. My observation was that the tree provided only a minor contribution to privacy and screening.

Evidence regarding damage 18There are three reports regarding the damage to the wall. The first report, written by David Moore of David Moore Constructions for the Halls, is dated 14 June 2005. Mr Moore described this section of wall as a "...single skin brick wall with engaged piers." He found it to be "structurally sound and 8mm out of plum [sic]." He made no recommendations regarding this section of wall. 19Soon after, the second report, dated 11 July 2005, was written by Dan Drexler, Building Consultant, for the Stanfords. Mr Drexler noted that the wall was a single brick construction reinforced by brick piers. He noted that two sections of the wall had separated at an expansion joint, through which a tree root was growing. He noted that one section of the wall was "leaning markedly out of alignment" but there was no measurement indicating the extent of displacement. He noted that the umbrella tree on the neighbouring land was in contact with sections of the wall. Based on these observations Mr Drexler concluded that the umbrella tree was the cause of the damage. He recommended that the tree be removed and the wall be repaired. 20The Halls commissioned a further report from D. J. Hall (not a relation), Consulting Civil and Structural Engineer, dated 4 May 2012, almost seven years after the earlier reports. In section 1 of that report Mr D. J. Hall notes the facts of which he was informed, including that the gap between sections of the wall had been present for several years and that the displaced section of wall was constructed upon an existing sandstone dwarf wall. In section 2 he records four brief observations, including that the umbrella tree was adjacent to the gap in the fence, that gap being 50 mm at the top of the fence. He noted that the respondents' soil level near this section of the wall was approximately 600 mm above the Stanfords' level. He did not carry out any further investigations but, based on the above, concluded in section 3 and then recommended in section 4: 3. In my opinion, the gap and lean in the fence has most probably resulted from lateral pressures on the fence caused by the roots of the umbrella tree. Another factor that may have contributed to the problem was the previously leaking pipe in the stormwater easement near the fence. This would have increased the hydrostatic pressures on the backfilled section of the fence. Recent excavations at No. 120 for the installation of the rainwater tanks alongside the fence may have weakened the foundations of the fence. 4. At this stage I recommend the following mitigation work: a. Remove the section of the fence shown hatched on the attached sketch No. 1, down to the soil level at No. 122 Waterview Street. This is a section of fence approximately 1500mm high by 1800mm long. b. Construct a timber fence on top of the remaining dwarf retaining wall. At this stage the umbrella tree should remain. 21Although clearly stating that the displacement is most probably caused by the tree, Mr D. J. Hall's further conclusions give the impression that he is searching for other causes, yet he has not included these causes in either the facts of which he was informed or his observations at the site. There is nothing to substantiate these additional factors that "may have contributed". There is no evidence regarding leaking pipes or that the ground at no. 120 was excavated. 22The report provides no reasoning for the recommendation to replace the brick wall with a timber fence. Despite identifying the umbrella tree as the most likely cause of damage the author says, without explanation, that the tree "should remain". The report provides little assistance to the Court.

The framework for consideration 23The application is made pursuant to s 7 of the Act. According to s 10 (2) of the Act, I must first be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property, or is likely to cause injury to any person. Only then can I proceed to make orders under s 9 of the Act as I see fit, after considering the matters in s 12.

The Court has jurisdiction 24The respondents conceded at the hearing that their tree has caused damage, a matter of which I am also satisfied as a result of the onsite view and evidence before me. Therefore, the Court's jurisdiction is enlivened. 25Although it is obvious from material in the exhibits and via the onsite view that another section of the wall has been damaged, that damage is apparently not associated with trees. The Dividing Fences Act 1991 was referred to by the parties, but no orders are being sought for works to the boundary wall or fence beyond the section damaged by the umbrella tree. Any orders made will be under the Trees (Disputes Between Neighbours) Act 1996, not the Dividing Fences Act 1991.

Matters to be considered before making orders. 26According to s 9 of the Act, orders can be made for interference with the tree, for repairs to property damaged by the tree and for apportioning the costs of any works. In determining what would be appropriate for each of these areas, I am required to consider a range of matters under s 12 of the Act, as shown below. 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) 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, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case.

Considering interference with the tree 27Consideration of ss 12(a) to 12(g) is relevant in determining what orders, if any, would be appropriate for interfering with the tree, as discussed below. 28The tree is immediately adjacent to the boundary; its base is against the boundary wall. 29Interference with the tree would not require a permit from Pittwater Council as the tree is listed in Council's Tree Preservation Order as an undesirable species and is therefore exempt. No approval for interference with the tree would be required under any other Act. 30Pruning of the tree has not been sought and would not affect the tree's contribution to damage of the boundary wall. 31Although the Halls submit that the tree contributes to privacy, and screens the built form further to the south, I noted at the onsite view that any such contribution is minor and removal of the tree would not significantly affect the Halls' amenity. They say most of the benefit of this is at the southern end of their rear balcony. The Stanfords say that any contribution of the tree to privacy and screening is minor. I do not accept that screening provided by the tree is a reason not to interfere with the tree. 32The Halls contend that the Stanfords want the tree removed to improve views, although I note that there is no evidence of this and the Stanfords say they do not think the tree obstructs any views. Views are not a consideration under this Part of the Act. 33The tree does not have any historical, cultural, social or scientific value. 34The tree makes little contribution to the local ecosystem and biodiversity. The Halls submit that a tawny frogmouth roosts in the umbrella tree on occasion. The Stanfords say they have only seen it there once but have seen it in other trees in the neighbourhood. On the day of the hearing the tawny frogmouth was roosting in a jacaranda to the south of the properties. I note that there are many other trees in the area. There was no evidence that the tawny frogmouth relies on this one tree or that it would be affected by the tree's removal. I do not accept the Halls' submission that this is a reason not to interfere with the tree. 35The tree is currently stressed - its foliage has been grazed by unidentified creatures. It is not a large tree. I am of the view that removal of the tree would not significantly affect the natural landscape and scenic value of the Halls' land or the surrounding land, nor the intrinsic value of the tree to public amenity, nor soil stability, the water table or other natural features of any land. 36The Halls submit that the tree does not need to be removed. However, it would be difficult to carry out works to the wall without damaging the tree if it is not removed, as major roots are pushing against the dwarf wall and would need to be severed. It also seems most likely that the tree will cause further damage to any new fence or wall, as its base would be against the structure. Considering the points discussed in the paragraphs above, I do not see that the tree's value justifies any alternative design of the boundary fence. The most practical result would involve removal of the tree, which would not adversely affect local environmental values or amenity.

Considering interference with the boundary wall 37The Halls' latest report recommends demolition and removal of the damaged section of the wall. The Stanfords also submit that this section of the wall needs to be demolished and rebuilt. The wall now leans significantly into the Stanfords' property. I accept that it needs to be replaced. 38The Halls submit that it would be suitable to replace this section of the wall with a timber fence, perhaps in a style similar to the timber screening of the Stanfords' water tanks. They have included a quotation for a timber fence, although they do not wish this quote to be accepted and only submit it to show that this could be done, and as an example of what this might cost. They also submit that the boundary fence to the east of the damaged wall is an ageing timber paling fence, approximately 10 metres in length, that will require replacement at some time. They say it would be too expensive for that section to be constructed of bricks and it would more likely be replaced with a wooden fence. Regarding this latter point, there is no evidence that the fence to the east will be replaced, or with what it might be replaced. I will not consider the fence further to the east in determining appropriate orders for the damaged wall. 39The Stanfords say that the Halls' tree has damaged their property (their share of the boundary wall) and it should be restored to its prior condition. They want a brick wall similar to the damaged one, not a timber fence. 40The Halls say that any brick wall may now require a properly engineered footing, rather than the dwarf wall which has now possibly been displaced. They say this would be an improvement to the previous wall - that the Stanfords would be gaining something that they did not have previously. 41The Stanfords point out that this may be a consequence of the wall being replaced with a similar wall, but they do not seek any gain and would not materially benefit from an improvement to the footing. 42I accept the Stanfords' view that their property should be restored to its previous state, being a brick wall. If, as the Halls contend, a new footing beneath a brick wall would be a gain to the Stanfords, it follows that anything less than a brick wall would therefore be a loss to the Stanfords, a loss they do not wish to accept. 43It is unclear if a new footing for such a wall would be required, or if the remaining dwarf wall could be used. The Stanfords obtained two quotes for replacing this 7-metre section of wall. Again, these quotes are not at this point intended for acceptance; rather they are to indicate likely costs of the works. The quote of Bacuss Constructions, for $5,310, states "If new footing not required less $1,400." The quote of PBC, for $17,026, includes engineering design, excavation and concrete works, all of which may be required for the footing, at a significantly higher cost. Certainly, if a brick wall can be constructed without a new footing, this should be done to avoid unnecessary expense. The parties agreed at the hearing that, if a brick wall is to be rebuilt, the builder should advise on the need for a new footing at the time of the works. The builder may need to demolish the existing wall before making a final recommendation.

Consideration of apportionment of the costs of any works 44The requirement to consider other possible causes of damage, under s 12(h)(i), and steps taken by the parties to prevent or rectify damage, under s 12(h)(ii), relates primarily here to determining who should pay the costs of any works, or how those costs should be apportioned. 45The Halls contend that, when water tanks were installed on the Stanfords' property in 2010, the ground was excavated, partly with a jackhammer. They say that this destabilised the wall and that the weight of the full water tanks has caused the wall to be displaced. They say that photographs show the tanks are against the wall. The Stanfords say that they had the tanks installed according to a council permit. They say there was no excavation, only that a garden bed that had been built up was removed back to the level of the original path, which remained. Any jackhammer works were to remove some of the concrete balcony footing, well away from the fence. They say the tanks were installed on a properly constructed 150 mm reinforced concrete base. They say the tanks are freestanding and were not against the wall when installed. I find the Stanfords' evidence and submissions regarding the tanks more convincing and more fitting of my observations at the site. There is no evidence that works for the tanks have destabilised the wall. If the wall is now against the tanks that is likely to be a result of its displacement. Displacement of the wall is most severe near the tree, not near the tanks. Most importantly, the wall's displacement was first brought to the Halls' attention five years prior to the tanks being installed. In my view the tanks are not a cause of damage to the wall. 46Several palm trees grow on the Halls' land to the east of the umbrella tree and close to the common boundary. No submissions regarding these palms were made by either party but I noted their proximity to the wall during the onsite view and mentioned this to the parties. In my view, due to the proximity of these palms to the wall, there is some likelihood that they have contributed to the wall's displacement, although I accept that the umbrella tree is the primary cause. 47Mr D. J. Hall's report suggested other factors may have contributed to the wall's displacement, but no evidence of this was provided and I do not accept those conclusions. 48When discussing factors that might be considered under s 12(h) of the Act, and particularly the phrase "anything, other than the tree, that has contributed, or is contributing...", Preston CJ in Robson v Leischke [2008] NSWLEC 152 said at paragraphs 206-207: 206The phrase also would include any act or omission by the owner of the land on which the tree is situated, which has contributed or is contributing to the damage or the likelihood of injury to any person. 207The considerations that arise in the tort of nuisance concerning fault, the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury. Thus, it would be relevant to consider whether the person created the nuisance constituted by the tree having caused, causing, or being likely to cause damage, or whether the person adopted or continued that nuisance. Such conduct could be said to be "anything, other than the tree, that has contributed, or is contributing to any such damage". 49The Halls were alerted to the Stanfords' concerns in the letter of 13 April 2005. Although the report obtained by the Halls soon after did not identify the tree as a cause, the report obtained by the Stanfords in July 2005 did identify the tree as a cause of the damage and recommended tree removal and repairs to the wall. The Halls, who received a copy of this report, were certainly aware of the likelihood that their tree was causing damage from July 2005. Furthermore, when questioned at the hearing by Mr Mitchell, Mr Hall stated that he was aware of the umbrella tree's presence from around 1986 and that, as a builder, he was also aware that tree roots could affect walls. Despite this, and despite Mr Drexler's report in 2005, the Halls maintained a denial of any responsibility through to 2011 and took no action. This "omission" to take action and "continuance of the nuisance" despite the Halls' "state of knowledge" are directly referred to above by Preston CJ as matters that should be considered. 50The Halls submitted that the Stanfords could have cut roots and repaired the fence. However, considering that the bulk of the root mass exerting pressure on the wall is located on the Halls' property I find this an unreasonable expectation. The Stanfords took what reasonable action they could by notifying the Halls. The responsibility then lay with the Halls. 51The report of Mr Moore in 2005 stated that the displacement of the wall was then 8 mm. It is not clear if the wall could simply have been repaired rather than replaced at that time, but certainly neither of the 2005 reports recommended demolition. Therefore the need for demolition and rebuilding, at greater expense, has most likely arisen as a consequence of the Halls' omission to take timely action. 52I am therefore of the view that, by contributing to damage through their omission, the Halls should be responsible for the primary costs of restoring the wall to its original condition. 53I accept that, if a new footing is required, the rebuilt wall will be an improvement on the original wall. It would therefore be reasonable for the Stanfords to contribute equally to this element, but only this element, of the new wall. 54The tree belongs to the Halls. The Stanfords have not contributed in any way to the need for its removal. The cost of tree removal will lie with the Halls.

Conclusions 55I accept that the umbrella tree on the Halls' land is the primary cause of damage to the brick boundary wall. 56Damage to the wall is such that a 7-metre section now requires demolition and rebuilding. 57Removal of the tree is necessary for the wall to be demolished and rebuilt, as major roots would be severed during those works. Removal would also avoid the likelihood of the tree damaging a new wall on the boundary. 58The damaged wall is of single brick construction and should be replaced with a wall of similar appearance and structure. The selected contractor will need to determine if the new wall can be constructed on the existing dwarf wall or if a new footing is required. 59The Stanfords first notified the Halls in 2005, when damage was significantly less and the wall may have been able to be repaired. The Halls have taken no action despite their knowledge of the damage and shall be responsible for the costs of tree removal and the primary costs of rebuilding the wall. 60If the wall requires a new footing this would be an improvement to the original wall and any additional costs for this should be shared by the parties. 61I note that there are several palms on the Halls' property in close proximity to the wall. These palms may have contributed to damage, although no evidence of this has been provided.

Orders 62Considering the foregoing, the orders of the Court are: (1)The application is upheld in part. (2)The respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) to remove the umbrella tree to ground level. The stump is to be ground out or otherwise removed. This work must be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3)The works in (2) are to be completed within 30 days of the date of these orders. (4)The works in (2) should be principally done from within the respondents' property; however the applicants are to provide all necessary access for the works in (2), on reasonable notice and during reasonable hours of the day. They can supervise these works if they wish. (5)The respondents are to obtain three itemised quotes from suitably experienced contractors for the demolition and rebuilding of the 7-metre section of the brick boundary wall. The wall is to be constructed in a manner, and using materials, to match the existing wall as closely as possible. The quotes must show, as a separate and provisional item, the amount for removal of the dwarf wall and construction of a suitable footing, should such works be required. (6)The respondents are to provide the applicants with copies of the quotes in (5) within 30 days of the date of these orders. (7)Within 35 days of the date of these orders, the parties are to agree on the quote to be selected. If the parties cannot agree on a quote they are to select the quote with the lowest provisional amount for footing works. (8)The respondents are to engage and pay for the selected contractor to carry out and complete the works in (5) within 90 days of the date of these orders. (9)The respondents are to provide the applicants with three working days' notice of the works in (5). (10)The applicants are to provide all necessary access for the efficient completion of the works in (5), during reasonable hours of the day. They may supervise the works if they wish. (11)During the works, the contractor is to determine if the wall can be constructed on the existing dwarf wall or if a new footing is required. The contractor is to provide a written explanation of this determination to the respondents within 24 hours of making this determination. The respondents are to provide the applicants with a copy of the contractor's written determination regarding the footing within 24 hours of receiving it from the contractor. (12)If a new footing is required the applicants are to pay the respondents 50% of the itemised amount for footing works on the quotation selected in (7) within 14 days of receiving a receipted invoice for the completed works. (13)The exhibits are retained. D Galwey 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: 09 August 2012