Strata Plan 37107 v Symonds

Judgment 1COMMISSIONER: This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mosman against the owners of trees growing on an adjoining property. 2The applicant is seeking the removal of three trees and a contribution from the respondents for the repair of damage to the applicant's property the applicant says has been caused by the trees. Tree removal is also sought on the basis that the roots of the trees may in the future cause damage to the applicant's sewer. 3The trees are a Cinnamomum camphora (Camphor Laurel) and two Harpephyllum caffrum (Kaffir Plum) growing near the eastern side boundary of the respondents' property. The property said to have been damaged by the trees comprises a single skin brick wall on the southwestern portion of the applicant's property and the concrete paving on which the wall is constructed. In addition, there is a claim that a block of sandstone in a dry stone retaining wall to the north of the brick wall has been displaced, presumably by the Camphor Laurel. 4The applicant's property slopes quite steeply from front to rear. A set of stairs beside the building leads from the street down to the paved barbecue area. A garden bed between the stairs and the respondents' property is retained at various points by sandstone outcrops, naturally shaped rocks and dressed blocks of sandstone. 5The brick wall is 13 courses high. Photographs in both the applicant's and respondents' evidence clearly illustrate the damage. There is a diagonal crack in the wall at its northern end, the end closest to the Camphor Laurel. The section south of a sewer vent shows a section of three of the lower courses of bricks displaced in an outwards (easterly) direction. There is an obvious gap in the mortar between the fourth and fifth courses. A brick barbecue has been built into the southern part of the wall. There are gaps in the mortar behind the barbecue, and cracks and displacement of parts of the barbecue itself. 6At the northern end of the brick wall there is a return created by a second course of bricks. These bricks have been cut to fit around sandstone rocks that form part of the retaining wall that forms the boundary between the parties' properties. The wall is also tilted off vertical alignment in an easterly direction. The brick wall is not a retaining wall. 7The paving near the wall comprises two oxided concrete slabs. Between the slabs there is a more recent section of concrete between a sewer vent and an inspection cap. The concrete slabs are in good order in that there are no obvious cracks. The applicant contends that the damage to the paving is the uplift of the strip of concrete over the sewer vent line that has created a change in level of about 5-10mm between that strip and the slab to the south. 8Both parties engaged engineers to report on the wall and the pavement. The first respondent is an architect and builder. Neither engineer was present at the hearing however their reports are included in the parties' bundles of evidence. 9The applicant's engineer, Mr Mateffy states that the brick wall is not a retaining wall and the retaining wall on the respondents' land is independent of the brick wall. However, he notes one point where a protruding piece of sandstone is touching the brick wall. In his opinion, this has led to horizontal movement of the brick wall. He states: The stone in the neighbour's wall is in all probability pushed out of place by the roots and trunk of the Camphor Laurel tree.' 10Further, Mr Mateffy states: The writer has formed the opinion that the only structurally logical cause for the movements in both walls and the slab, and the consequent cracks, is (a) an upward lift from root development of the large (about 9m high) tree, probably a Kaffir Plum, at less than one metre from the boundary on the neighbour's side, and (b) the lateral thrust due to the Camphor Laurel via the protruding stone in the neighbours' wall. The writer understands that some authorities consider Kaffir Plums and Camphor laurels to be undesirable, indeed dangerous, where root action may cause damage to pipes and footings. Potential damage to the sewer, however, is a more serious consideration. Depending on its age, it may be of earthenware pipes, which do not tolerate much movement. However, if they are constructed of plastic pipes the potential damage is less likely given the amount of apparent movements. 11Mr Mateffy recommends rebuilding the brick wall on a concrete pier and beam footing, replacing the slab and relaying the displaced section of the stone retaining wall. He also suggests that the trees should be removed in order to ensure no future damage to the slab. 12The respondents' engineer Mr Herbert inspected the wall and pavement in September 2011 and considers that neither the slab or the wall have lifted but rather the slab near the barbecue at the southern end of the wall has subsided. The evidence for this he says is the upper part of the wall above the crack being almost level and the bottom portion remaining on the settled slab. 13In regards to the slab, in his opinion, the original paving has settled at a greater rate than the patched section over the sewer vent. He states that there is no evidence such as cracks that would indicate upward pressure due to root growth. He considers the settlement may be due to the fill on which the slab is constructed being over a watercourse/ drainage path through which storm water moves and removes fine particles. 14Mr Herbert is of the opinion that the trunk of the Camphor Laurel has grown against a sandstone rock that is part of the retaining wall on the applicant's property which in turn is putting pressure on the brick wall causing it to tilt. 15In regards to the sandstone block retaining wall, in his opinion this is the natural result of earth pressure on the wall including the effect of the slope and the underlying rock surface; this he says " is totally foreseeable without resorting to assumed effects caused by root growth". In his view, the sandstone rock placed against the base of the Camphor Laurel should be removed and the trunk left clear. 16Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. As the applicant is concerned about future damage to the sewer pipes, the guidance decision published in Yang v Scerri [2007] NSWLEC 592 is relevant. In this case the Court considered, as a rule of thumb, the 'near future' to be a period of 12 months from the date of the determination. In the circumstances of the matter before me, I see no reason to deviate from that time frame. 17The applicant's claim has four main elements - the sewer, brick wall, sandstone retaining wall and paving. In determining whether any or all of the trees subject to the application have caused, are causing, or could in the near future cause, damage to property requires consideration of a number of principles. In Robson v Leischke [2008] NSWLEC 152 at [179], [184] Preston CJ found that the tree need not be "the" cause of damage, but may be only "a" cause. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Craig J discussed the obligation created by s10 for the Court to be satisfied of the causal nexus between the tree the subject of the application and the damage claimed. This requires an assessment of all the evidence before the Court. At [38] Craig J held that s10 of the Act requires the Court to be "satisfied" of the causal nexus between the tree and the damage claimed, and held: That will require an assessment of the totality of the evidence adduced before me. When considering that evidence, it will, nonetheless, require a "preponderance of probability" that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section. 18Dealing first with the sewer, Mr Bentley, a resident and the applicant's agent, stated that there have been no problems with the sewer in the 14 years he has lived there. The applicant's bundle included printouts from various state water corporation web sites regarding distance trees such as Kaffir Plums and Camphor Laurels should be planted from sewers. These are general guidance documents rather than peer reviewed literature, and in effect, amount to unsubstantiated opinion. Absent any actual problems with the sewer and no evidence of any roots, there is no reason to suspect that the situation will change in the next 12 months. Therefore, the Court has no jurisdiction to make any orders for any intervention with any of the trees in regards to possible future damage to the sewer. Consequently, that element of the application is dismissed. 19With respect to the paving, the 'damage' is said to be a slight difference in levels between the original slabs and the more recent (but older than 14 years) strip over the sewer vent pipe. I saw no evidence of any cracking consistent with the applicant's contention that there has been uplift caused by tree roots. As noted above, the slabs are in good condition. The evidence on site and the explanation by the respondent that the lowest of the slabs has subsided is far more plausible. The respondents' bundle includes a subdivision plan prepared for an auction in 1900 that clearly shows a creek in the vicinity of what is now the paved area. Given the topography of the site and the likely drainage path, it is entirely feasible that over time, fine material has been washed away from beneath the slab. The nature of the cracking of the wall above the lower slab and a small piece of the slab adhering to the central concrete strip would seem to me to be consistent with subsidence and not the uplift of the other slabs. In this, I persuaded by Mr Herbert's opinion. Again, the applicant was unable to produce evidence of any roots from any of the trees in the section of slab said to be damaged. Therefore as s 10(2) is not satisfied for the paving, no orders can be made for any intervention with the trees on that basis. 20There is no evidence that any part of any of the trees on the respondents' property have contributed to the displacement of one of the large blocks of sandstone that make up the more formally constructed part of the retaining wall on the western side of the applicant's property. I concur with Mr Herbert's opinion outlined in [15]. On this basis, no orders will be made with respect to this element of the application. 21In considering the wall, it is admitted by both the applicant's agent and the first respondent that the wall was cracked and in poor condition when they purchased their properties, at least 14 and 13 years ago respectively. The respondents' evidence is that the two Kaffir plums were planted 11 years ago about two years after they purchased their property. On this basis, the respondents contend that the Kaffir Plums could not have caused the damage to the wall. There is a gap behind the brick wall and the garden bed in which the Kaffir Plums are growing. No roots were observed. Mr Mateffy's opinion is based on speculation and not on fact as no excavations were carried out to confirm the presence/ absence of roots. 22On the basis of the evidence before me, I am not satisfied that there is any nexus between the damaged wall and either of the two Kaffir Plum trees. As s 10(2) is not satisfied for those trees, that element of the application is dismissed. 23With respect to the Camphor Laurel, the base of the tree is pressing against a sandstone rock that appears to have been placed against it many years ago. The bricks forming the return on the northern end of the wall have clearly been notched to accommodate the rock. It is possible that the increase in girth of the tree has placed pressure on the rock, which in turn has placed pressure on the wall. However, it is equally possible that gravity has contributed to the pressure on the wall. However, putting the applicant's case at its highest, I consider s 10(2) is satisfied with respect to the wall and the Camphor Laurel. 24Section 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property. The order sought by the applicant is the removal of the tree and the rectification of the wall. 25Before making orders, the Court must consider a number of discretionary matters in s 12 of the Act. The following clauses are relevant: (a)The Camphor Laurel is on the respondents' property. (g) Given its location on a slope, the tree is likely to contribute to the stability of the slope. (h)(i) Other factors: As noted above, the wall has been substantially in its current state of disrepair for at least 14 years. The evidence of the cracks, the displacement of the paving on which the wall sits, the displacement of the wall and the nature of the cracks relative to an adjoining garage wall to the south of the site (into which the wall is keyed), strongly suggest subsidence. As discussed above, the subsidence is probably due to the gradual removal of fines due to the natural down hill flow of water above and below ground. The sandstone rock was clearly incorporated into the wall. In addition to some pressure caused by the tree, the movement of the stone due to gravity may have caused loading of the wall. The wall itself is a single skin wall built onto the concrete slabs; the wall has no footings that would meet current standards. It is thought the wall and the paving were constructed at least 20-30 years ago when the applicant's property went to strata title. 26In regards to the orders sought by the applicant, I consider the removal of the tree to be disproportionate to the extent of the tree's contribution to the state of the wall and would be completely unreasonable on the evidence before me. The only connection between the Camphor Laurel and the brick wall is via the piece of sandstone rock that appears to have been placed against the tree many years ago. It would also seem to me that the contribution of the rock to the overall condition of the wall is minimal and the removal of the rock will make little difference to the condition of the wall. Therefore, as a matter of discretion enabled by s 9, no orders will be made for any intervention with the tree or for any contribution from the respondents to the repair/ replacement of the wall. 27Therefore, as a consequence of the forgoing, the Orders of the Court are: (1)The application is dismissed.