Findings
19Dealing first with the potential future damage to the major retaining wall, I consider this is an example of a 'theoretical possibility' in the absence of any evidence to support that possibility. As stated previously, the applicant was unable to demonstrate the presence of any roots in the vicinity of the wall and to establish they formed an imminent threat of damage.
20In the guidance decision of Yang v Scerri [2007] NSWLEC 592 the Court applied a 'rule of thumb' that the appropriate timeframe for 'the near future' is 12 months from the time of the hearing. This timeframe has been consistently applied and I see no reason in these circumstances to deviate from it.
21As s 10(2) is not met for any tree with respect to the major retaining wall, no orders can be made for any orders to interfere with any of the trees on this basis. Therefore, this element of the application is dismissed.
22With respect to the low retaining wall, there is no evidence that roots from trees 2, 3 and 4 have caused any damage to it or are likely to do so in the near future. Similarly these trees are unlikely in the near future to cause damage to the fence. As s 10(2) is not met with respect to these trees, no orders can be made for any intervention with them and these elements of the application are dismissed.
23Turning to the Norfolk Island Pine, it is true that this is a relatively young tree located close to the common boundary. There is clearly a surface root from this tree on the applicant's property behind the retaining wall.
24In putting the applicant's case at its highest, I am prepared to accept that the root is likely to be one cause of the damage to the wall. In Robson v Leischke [2008] NSWLEC 152, at [179] Preston CJ notes that it is sufficient for a tree to be 'a' cause and not the sole cause of damage for the Court's jurisdiction to be engaged.
25Therefore s 10(2) is met and the Court's jurisdiction is engaged with respect to this tree. However in considering what, if any, orders should be made under s 9 of the Act, I must consider a number of discretionary matters in s 12.
26Relevant here: the tree is wholly on the respondents' property (s 12(a)); the removal of the visible surface root is unlikely to cause any detrimental impact on the tree's stability or health (s 12(b2)); the respondents contend that the tree contributes to the landscaping and amenity of their property and as it can be seen from nearby properties and streets, it also contributes to public amenity (s 12(b3)(e)(f)); the respondents also contend that the tree assists with drainage and soil stability in that corner of their property (s 12(g)).
27Of particular relevance is s 12(h)(i) - anything other than the tree that may contribute to the damage. The significant factors are: the age of the retaining wall (38 years); the unknown structural integrity of the footings; the pressure of soil, water and gravity on the wall over the past 38 years; the agreed past presence of a heavy vine and a leaning tree on the wall; erosion of soil from the base of the wall; the absence of weep holes and no evidence to suggest that the soil behind the wall is drained.
28Also relevant is s 12(h)(ii) - While the bean tree and the vine have been removed, no other action has been taken to prevent further damage.
29Other relevant matters include the fact that the applicant was aware of the condition of the wall when she purchased the property and no further damage has occurred during her ownership. The surface root is not touching the wall (s 12(j)).
30The applicant seeks the removal of the tree. In my view this is disproportionate to the likely future impact of the observed root on what is clearly an old and dilapidated retaining wall. While the root may be a minor contributing factor, the other contributing factors outlined above are likely to be the main causes.
31The issue of coming to the damage is discussed in Liang & anor v Marsh & anor [2011] NSWLEC 1026 at [33]-[35].
32After considering the evidence and the particular circumstances of this matter, I am not satisfied that the contribution of the tree to the condition of the wall is such that it warrants an order of the Court.
33As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change a new application can be made. The decisions in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 shed further light on what the Court considers to be changed circumstances.
34In conclusion the application to remove the Norfolk Island Pine is dismissed. With respect to the entire application, the Orders of the Court are:
(1)The application is dismissed.
J Fakes
Commissioner of the Court
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Decision last updated: 17 August 2012