The Owners - Strata Plan 1868 v Morgan - [2021] NSWLEC 1313 - NSWLEC 2021 case summary

Land and Environment Court (NSW)|2021-03-11

Background

The land owned by The Owners - Strata Plan 1868 (the Strata), the applicant, includes a relatively straight row of 18 garages, located in Earlwood, in Sydney's inner west. The garages are positioned on land levelled by excavating a slope, so that their rear walls appear to retain the back yards of neighbouring properties, the levels of which are about 1.3 metres higher than the garage floors.
The subject of this dispute is a Schefflera actinophylla (Umbrella tree) (the tree) which is growing at the rear of the respondent's yard, about 40cm from this garage wall. The respondent is Ms Morgan.
The applicant claims that the tree is damaging the adjacent rear garage wall, and submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking orders for the removal of the tree, and poisoning of its stump and roots.
In 2017, representatives of the Strata approached Ms Morgan to advise that the tree was causing damage to the wall, which she rejected, on the basis that the report she was given provided no sound evidence that her tree was causing such damage.
Three letters requesting removal were sent by the Strata manager, Relm Property Group, Pty Ltd, in 2017, and 2018, along with a Canterbury-Bankstown Council (Council) Tree Pruning and Removal application form, and an offer to pay the removal cost.
The Strata had secured permission to remove a large Liquidambar tree located at the rear of Ms Morgan's side neighbours' property, on the basis that it was also causing garage wall damage. The Strata aimed to have both trees removed prior to undertaking rectification works. In the absence of agreement with the applicant, repairs using heavy steel reinforcing was undertaken in 2019, at a cost of about $54,000, at the rear of five garages.
Prior to lodgement of the Land and Environment Court (LEC) application, a final visit to Ms Morgan occurred in June 2020. The respondent notes, in her letter to the Court, dated 23 November 2020 (her letter), that the tree's classification as "a weed", was the primary emphasis of the applicant's agent, so as to justify its removal, and that no evidence was provided to prove that the tree was causing wall damage.

On site hearing

The Strata was represented at the hearing by Mr Ottignon, and a letter from the property agent, was lodged with the Court, confirming his appointment "as the authorised agent for the attached matter". Another Strata owner accompanied him. Ms Morgan was self-represented.
The tree was initially inspected from the respondent's yard, and I inspected the rear wall of the garage abutting the tree, and those of neighbouring garages. Mr Ottignon commenced verbal submissions, highlighting his credentials as a passionate native bush regenerator, and sanctimoniously denigrating the tree as a non-native weed. This is irrelevant to the proceedings.
The NSW WeedWise page on the NSW Department of Primary Industries website notes that "Umbrella tree is native to northern Qld. It is an occasional garden escape in warm, coastal districts".
The issue to be tested is the nexus between the tree and damage to the wall, and whether the requirements of the Act are satisfied.

Jurisdictional requirements

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court's ability to make orders is limited, at s 10 of the Trees Act. 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12.
The respondent notes, in her letter, that she was initially approached by a Strata resident "a few years ago", with a request to cut her tree down while the neighbour's tree was being removed, because it had caused damage to their garages. She adds that, upon her refusal, texts and other visits followed, with an increasingly insistent and "bullying' tone, and an emphasis on the tree's status as a weed, rather than on evidence confirming damage caused her tree. In summary, the respondent notes feeling that "communication from the Strata has not been honest or friendly", and that no compromise has been considered.
Notwithstanding this may be the case, the record of correspondence and conversations between the parties is extensive, and it spans at least three years. The applicant has also offered to arrange and pay for the tree removal. Therefore, s 10(1)(a), requiring that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, has been satisfied.
Therefore, the principal jurisdictional test in this matter is at s 10(2).
Ms Morgan, in her letter, noted ambiguity in the applicant's correspondence, as to whether the question being posed was that damage had been caused by the tree, or if it was likely to be caused in the future.
Such ambiguity does arise from the expert evidence provided by the applicant to the respondent, and to the Court. Neither noted the requirement of expert witnesses to read and comply with the Expert Witness Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005. Nonetheless, I considered each submission.
A letter to the respondent from Highground Engineering, dated 3 November 2020, notes "In our opinion, we would confirm that the root system of the subject tree are (sic) liable to structurally damage the garage walling of the adjacent property'". A cursory report from Remedial Building (the report), dated 4 November 2020, says at 1.3, that "The tree has caused cracking and structural damage to the rear wall of the garages".
Though the respondent found this inconsistency disconcerting, this conflicting information does not reflect dishonesty, and it is also largely irrelevant to the primary issue, as only one of the questions of whether the tree has caused, is causing, or is likely in the near future to cause damage needs to be satisfied, so as to engage the jurisdiction of the Act.

Current wall damage

My inspection of the wall from within the respondent's property, immediately adjacent to the tree, did reveal penetration by small roots into cracks in the mortar between some blocks, as well as at least one root, about 50mm in diameter, growing along and hard up against the face of the wall.
In the absence of any exploratory excavation having been undertaken, it was not possible to ascertain whether roots have exploited pre-existing cracks, or whether deeper roots were assuming similar positions, and perhaps also penetrating the wall. Though minor cracking was evident between blocks in this area, when assessed from within the garage, not even fine roots could be seen from my examination using a strong torch light.
It is regrettable that the Strata did not undertake or request some excavation in this area, to assist with clarification of a causal link between roots of the tree and the wall damage.
In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that: "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
Notwithstanding this, based on the penetration of small roots, characteristics of the cracking, and the proximity of the base of the tree to the cracks, I am satisfied, on the balance of probability, that the tree is one of various causes of past or current wall damage.
Damage is likely also resulting from secondary thickening of the base of a small Phoenix canariensis (Canary Island Date Palm) (the palm), which is growing in the respondent's property, to the west of the tree, and even closer to the wall. Viewed from the top, the wall remains relatively straight near the tree but, in close proximity to the palm, is slightly bowed in towards the garage, notwithstanding that no cracking of the top of the wall is evident. Again, in the absence of excavation, it is difficult to confirm or quantify wall damage caused by the palm, but I am satisfied that it is responsible for the slight wall bowing.
While this damage, caused by the tree and the palm, may not necessarily be significant, nonetheless, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285, indicates that even relatively minor damage satisfies the requirements of s 10(2) of the Act, and engages the Court's jurisdiction.
Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made.
With respect to the applicant's request for orders for removal of the tree, there are many elements to be considered, most of which were addressed by the respondent in her letter.
On page two, under the heading "Facts", Ms Morgan notes that "the garages are built against the property boundary, with no reinforcement to ensure longevity of the structure". The applicant's report, at 1.3, confirms that "The garage wall is constructed of hollow masonry blocks with no steel reinforcement".
Based on the arboricultural expertise which I bring to the LEC, and on my experience as an Acting Commissioner at the Court, I have inspected and evaluated the relationship between trees and wall damage on many occasions. Normally such walls are reinforced with vertical 12mm or 16mm steel bars, and this is a requirement of modern building standards. This is clearly absent in this case. It is also very unusual, and would likely be considered a cost saving technical deficiency, to construct the rear garage walls hard up against the significantly higher neighbouring land, so that the wall is required to also perform the role of retaining soil in the neighbouring yards.
Further, evidence adduced in other cases, from sound professional engineering advice with respect to walls, leads me to conclude that the expected service life of a wall constructed similarly to this one is 40-50 years. Though I do not know the year that the garages were built, they are quite dilapidated, and the adjacent Strata block is a Seidler construction from the mid 1960's. It is therefore reasonable to conclude that the garages may be approaching, or technically beyond, the end of their useful life, or, at least, reached an age where maintenance is required to extend their service life, regardless of other influences.
The respondent notes that no evidence was provided by the applicant to distinguish between damage caused by the now removed large Liquidambar tree which grew in her neighbours' property, and any caused by her tree. I agree. Both the Highground Engineering letter and the Remedial Building report provided by the applicant, included only unsubstantiated speculative comment, of no value to the Court. The respondent was entirely reasonable to dismiss these.
The respondent is also reasonable in stressing the myriad environmental services the tree provides for her family; privacy, shading, habitat, and local amenity, along with enhanced property values.

Wall damage in the near future

The applicant submitted that the tree is likely to cause damage in the future, as an additional basis for its removal. Given that some roots from the tree are already penetrating the wall, and at least one other medium sized root is growing along and hard up against the wall, in light of the wall's structural deficiencies, I agree that further damage is likely.
Jurisdiction of the Act is engaged by confirmation of likelihood of damage in the near future. Based on a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the near future is deemed to be a period of 12 months from the date of the determination. Though additional damage may only be minor over the next 12 months, based on the size of the trees' base, its close proximity to the wall, and its likely moderate to rapid growth rate, I am satisfied that more series wall damage, caused by the tree, may occur quite quickly, and will almost certainly become serious, were the tree to remain indefinitely. The same applies to the palm, which has the potential to become very large, and is growing very close to the wall. It should be noted that this species is characterised by large sharp spines growing near the base of its fronds, which are prone to cause injuries, associated temporary localised paralysis.
As a base line has been established as a result of these proceedings, financial liability for obvious additional future damage is likely to sit with the respondent.
In her letter, the respondent noted that no alternatives, other than tree removal, have been explored by the applicant. She sought consideration of means to prevent the roots from growing towards the garages, such as the insertion of root control barriers. In this context, such measures are not viable, and would likely compromise the trees stability in the ground.
The respondent also questions why the garages were built "right up to the property border", and why no measures were incorporated at the time of garage construction, to protect the structure. While these are very reasonable considerations, and it is regrettable that such measures were not implemented, these historical deficiencies can only influence the Court's orders to the extent of apportionment of the financial liability imposed on either party.

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Act.

The tree is located in the respondent's property about 40 centimetres from the applicant's rear garage wall, at its closest point (subs 12(a)).
The tree provides a significant contribution to privacy, to protection from the sun, from wind, to the amenity of the respondent's property, and to the scenic value of the land on which it is situated (subss 12(b3) and (e)).
Particularly in the absence of other trees nearby, the tree provides intrinsic public amenity (subs 12(f)).
Though not a native to the region, the tree's flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna, and therefore it may make a contribution to local biodiversity (subs 12(d)).
Given the difference in levels between both properties, the tree may be providing benefit to soil stability, to the absorption of water, and the reduction of run off. Once removed and poisoned, it would be best to retain its stump base and roots (subs 12(g)).
Subsection 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. In this respect, the advanced age of the garage walls, and inadequacies in their construction, have been considered within the judgment.

Conclusion

Based on all evidence adduced, I have reached the following conclusions.
I am satisfied that the tree is one cause of wall damage, and that the other causes relate to various inadequacies in the wall construction, perhaps natural movement of reactive clays over the long life of the wall, and the wall reaching or approaching the end of its service life. These considerations render it unreasonable for the respondent to bear responsibility for the cost of measures required for past wall repair.
Notwithstanding this, orders will be made for the removal of the tree and the palm, so as to prevent future damage, which would likely be considerable.
The fact that the occurrence of, and extent of wall damage are due in the main to the wall's inadequacies, noted above, leads to the applicant being liable for the cost of the tree removals, and for the replanting of two replacement trees, so as to compensate the respondent for the loss of the various environmental services which the trees provide. Many Eucalyptus and Acacia (Wattle) species, amongst others, grow sufficiently rapidly so as to provide privacy and other benefits relatively quickly.
The applicant applied for compensation for the cost of lodgement of the application. Commissioners do not have the powers to make such awards, but rather, this would be considered by the Registrar, or a judge of the Court, upon submission of a Notice of Motion.

Orders

The orders of the Court are: 1. The application is granted. 2. The applicant shall, at its expense, employ AQF level 3 qualified arborists, who carry all appropriate insurances, to remove the Schefflera and the Phoenix palm to near ground level, and poison their stumps with Glyphosate, immediately after cutting the trees to near ground level. All refuse shall be removed, and the site thoroughly tidied. The applicant shall carry liability for any damage to the respondent's property that may result from undertaking these works. These works shall be completed within 45 days of the date of these orders. 3. All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. The applicant shall, at its expense, employ horticulturists or arborists who hold at least AQF level 3 qualifications, and carry all appropriate insurances, to consult with the respondent as to her choice of two replacement trees, procure trees in 75 litre containers which meet the requirements of AS 2303:2018 Tree stock for landscape use, and plant them in appropriate locations of the respondents choosing, at least 1.5 metres from the shared property boundary. These works shall be completed within 45 days after the date of the tree removals. 5. The respondent shall provide access to her property, for the contractors to undertake the works specified in Orders 2 and 4 upon receipt of at least 72 hours' written notice from the applicant, which details the dates and approximate times that works are to commence. 6. All works shall be carried out during reasonable working hours.

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: 02 June 2021

The Owners - Strata Plan 1868 v Morgan

At a glance

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Decision date

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Judgment (9 paragraphs)

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Cases Cited (3)