Solicitors:
Respondents: Robert Silberberg
File Number(s): 20935 of 2014
[2]
Judgment
COMMISSIONERS: The applicant contends that trees growing on the respondents' property in Bellevue Hill have caused damage to a stone retaining wall on the applicant's property. The applicant asks the Court to make the following orders:
1. That the respondents, at their own costs, remove the trees (T1 and T2) causing damage to the applicant's retaining wall.
2. That the respondents, at their own cost, create a trench close to the boundary between the lands to prevent invasive roots from trees causing damage to the applicant's retaining wall in future.
3. That the respondents contribute 80% of the costs to repair the applicant's damaged retaining wall. Quotes and recommendations for the works are enclosed.
4. That the respondents contribute 50% of the costs to dismantle and rebuild the dividing fence between the lands in the cause of removing the trees and repairing the applicant's retaining wall. (Cost to be determined.)
5. That the respondents refrain from planting any tree in close proximity to the dividing fence.
6. That the respondents pay the applicant's costs in relation to this application. (Invoices enclosed.) [The claim form includes a figure of $14,375.22.]
The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). With respect to the last element of the claim, Commissioners of the Court do not have the power to order the payment of legal costs, costs of expert reports, application fees and other similar expenses. Costs must be 'costs' within the meaning of the Uniform Civil Procedure Act 2005 and the Land and Environment Court Rules 2007. Should any party wish to claim costs, a separate Notice of Motion must be heard and determined by a Judge or the Registrar of the Court.
By way of background, the respondents purchased their property in November 2007. The applicant contends that the damage to the retaining wall was drawn to the respondents' attention in 2009 by Mr McKenzie, an owner of one of the units in the applicant's property. According to Mr McKenzie, the damage was discovered by a gardener.
In applications made under Part 2 of the Act, there are a number of jurisdictional tests that must be satisfied before the powers to make orders under s 9 of the Act are engaged.
Section 7 states:
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. [emphasis added]
Section 4 - Act applies to trees on certain land, is relevant - in particular, subsections (3) and (4). These state:
(3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.
(4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on the land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.
The application claim form refers to four trees: Tree 1 - unknown species - tree stump, Tree 2 - unknown species - possible Cotoneaster - tree stump, Tree 3 - Camellia, Tree 4 - Magnolia. However, the orders only refer specifically to T1 and T2.
At the on-site hearing, the stump of T2 was observed. We are satisfied that, at the time the application was made, the stump of T1 was present however it has since been removed. Notwithstanding any findings as to other jurisdictional questions, on the basis of the many photographs of the stump of T1, it is a tree to which the Act could apply. This is consistent with the findings of Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paragraph [147] where His Honour said in part:
The concept of a "tree" is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land….
In Baker v Grabovac [2010] NSWLEC 1289 the Court considered a tree that had been removed and where there was evidence both of its existence and the damage it was said to have caused.
It was agreed that Tree 3 and Tree 4 are no longer part of the application as they are no longer there. These trees are identified on the site plan in the Tree Report prepared by the applicant's arborist Mr Lester Willis, dated 18 April 2012. It is unclear from other reports as to whether these two trees ever existed.
The primary jurisdictional question to be answered at this stage is whether T1 and T2 are wholly or principally on the respondents' land. There is no dispute that T2 is wholly on the respondents' land.
In October 2012, Harrison Friedman & Associates Pty Ltd surveyed the applicant's retaining wall and the location of the common boundary. The survey indicates that the retaining wall is wholly on the applicant's land. The only tree on the survey is identified by a green circle with the following notations - 'remains of stump (abt. 0.18 within)' [applicant's land] and 'remains of stump (abt. 0.20 within)' [respondents' land]. 'Abt.' is an abbreviation of 'about'. We are satisfied that this refers to T1.
Mr Harrison, the Registered Surveyor who undertook the survey was present at the hearing. It is his recollection that the stump protruded slightly above the ground, was indented and not circular in shape. He agreed that he did not calculate the area and distribution of the stump but measured it from the boundary to each outer edge. In oral evidence Mr Harrison considered the stump was roughly 50:50 on the parties' properties.
As the stump has been removed, there is no way of proving the location of the stump. While there are many photographs of the stump in the various experts' reports, none of the photographs conclusively prove whether the stump was principally on the respondents' land. While the reports of both Mr Willis and Mr William Home, the respondents' arborist, go to some length to argue the location of the stump, their arguments are essentially conjecture and speculation and of little assistance to the Court.
The burden of proof lies with the applicant to prove, on the balance of probability, that the tree(s) in question are situated on a respondent's land - see Drolz v Sinclair [2008] NSWLEC 34. As trees are rarely ever perfectly circular at their base, the survey must accurately illustrate the configuration of the base of the tree and its location with respect to the boundary - see Awad v Hardie (No 2) [2010] NSWLEC 1258.
Therefore, on the evidence before us, we cannot be satisfied to the level required by the Act that T1 was principally on the respondents' land. As a consequence the Act does not apply to it, however if we are wrong in this jurisdictional question we have considered T1 in the light of s 10(2).
Section 10(1)(a) of the Act states that the Court must not make an order under this Part unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Having considered the evidence, we are satisfied that a reasonable effort has been made.
The next relevant jurisdictional test is s 10(2)(a) which states that the Court must not make an order under this Part 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. This must be applied to all trees that are the subject of the application.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".
The alleged damage is displacement of a 5.8 m length of a sandstone retaining wall. As stated above, the 2012 survey shows the retaining wall to be entirely on the applicant's land. The survey also shows the extent of the displacement. The section in question extends in a north-easterly direction from the point it joins another retaining wall that extends from the applicant's building. At a distance of about 5.8 m to the north-east it joins another section of retaining wall that appears to be of a slightly different construction in that the stones in the wall are mortared.
In 2009, Mr David Stubbs, of Stubbs Cruikshank - Structural Engineers investigated the stone retaining wall. In 2011 Mr Stubbs prepared a supplementary report for the applicant on the likely cause of the damage to the wall. Mr Stubbs describes the displacement and then, in the fourth and fifth paragraphs, states:
A tree stump and roots are against the displaced section of the wall, the stump is in the order of 450mm in diameter and appears to be on the common boundary. Close to the displaced section of wall, and within the neighbouring property is another tree and several shrubs, some of their roots are growing in the joints between stones, which make up the wall.
The most likely reason for constructing the 5.8 metre section of wall approximately 700 mm from the common boundary and within No. 129 [the applicant's property] is, in my opinion, to avoid a large tree or trees that were growing along the boundary. As the retaining wall between the building and the boundary is 2.3 metres high and is not displaced, I am of the opinion that the large tree and its roots, caused the wall to displace as it grew, which is probably the reason the tree was removed and only the stump and roots remain. The growth of roots in joints between stones is also likely to cause the wall to displace.
Mr Stubbs concludes that the displaced section of the wall is unstable and should be reconstructed. Mr Stubbs also prepared a specification for the reconstruction of the wall.
The respondents engaged Mr Lyle Marshall, Lyle Marshall & Associates Pty Ltd - Consulting Engineers to inspect the retaining wall, review relevant reports and other documentation, and to prepare a report on the 'Age, Condition, Design and Dilapidation Report of the Existing Sandstone Gravity Wall..'.
In Mr Marshall's opinion, the wall: predates the applicant's property and is at least 60 years old; supports the earth embankment resulting from the excavation of the applicant's land into the slope; comprises large stone blocks on the lower portion with smaller irregular, dry packed [unmortared] sandstone blocks above; is displaced more in the upper level than the lower level; was constructed without a batter; and has no localised bulge opposite the location of the remains of T1 but is displaced along virtually the entire 5.8m length in question. In addition, Mr Marshall notes that there has been no excavation to determine whether sub-soil drainage was installed behind the wall. Similarly, no other investigation has been undertaken to determine whether there are any tree roots impacting on the wall.
In paragraph 2.4 of his report, Mr Marshall lists a number of factors in addition to root pressure that could have caused the lateral displacement of the retaining wall. These are summarised as:
Poor shape of the sandstone blocks and poor construction practices resulting in inadequate interlock between blocks, resulting in lower strength of the wall.
Poor interlock resulting in more cavities for root penetration of creepers, ferns and other plants observed on site thus causing displacement of stones.
Inadequate design of wall thickness resulting in lateral movement due to earth pressure and or hydrostatic pressure.
Weathering and partial disintegration of sandstone blocks due to water, heat and cold over the long life of the wall.
Inadequate maintenance and repairs to prevent lateral movement.
The dry pack gravity wall is nearing the end of its useful life.
In oral evidence, Mr Stubbs maintained his opinion that the damage was principally as a consequence of roots from the respondents' property. He disputed Mr Marshall's statement that walls such as this should be buttressed. He drew attention to the good condition of the retaining wall between the applicant's building and the retaining wall in question. In his opinion the only significant difference is the vegetation on the respondents' property.
In regards to any changes in the condition of the wall since the damage was discovered in 2009, Mr McKenzie stated on site that there had been no change in its condition and nor did the condition change after 2011 when Tree 2 was removed and reduced to a stump.
During the on-site hearing the Court made a number of observations:
There was at least one woody root of about 40mm or so in diameter, possibly from T2, in the vicinity of the wall and on the applicant's side of the fence.
There were small fibrous roots visible between the dry-packed stones in the upper portion of the wall, along the length in question.
A clump of Cestrum was growing in the soil on top of the wall, on the applicant's land and the remains of other plants such as ferns and ivy could be seen.
A vertical cavity in the dry-packed section of the wall appeared to be where a timber fence post had once been incorporated into the wall but has since decayed/ been removed.
The upper part of the wall was displaced more than the lower section.
On the evidence before us, we cannot be satisfied to the level required by s 10(2) that the roots of either T1 or T2 have caused the damage to the wall. However, if we are wrong in this, noting the discussion in Robson at paragraph [179] that the tree need only be a cause of the damage to engage the jurisdiction, we make the following findings. Specifically, these consider the discretionary matters in s 12(h) of the Act.
It is apparent from the evidence given on site that Tree 1 was reduced to a stump well before the respondents purchased their property. While the respondents owned their property when the damage was discovered, there is no evidence that any damage was caused by T1 occurred during their period of ownership. We fail to see how a dead and partially decayed stump can have exerted any pressure on the wall in the period between the time of purchase and date of discovery. Therefore we propose to dismiss the application in regards to T1. We note that as the stump has been removed, any impediment it may have created for any rectification of the wall is also removed.
With respect to T2, there is some evidence of a root close to the wall that may arise from it, and therefore while it may have contributed in some way to the condition of the wall, in addition to our own observations (at [28]) we concur with the comments made by Mr Marshall in [24] and [25] of this judgement that there are many other possible, if not probable, contributing factors. We also note the statement made by Mr McKenzie during the hearing that the condition of the wall has not changed since the damage was discovered. There is no evidence of any contribution of T2 to the condition of the wall between the time the respondents purchased their property and the discovery of the damage. As a consequence we do not propose to make any orders for any rectification of the wall on this basis or for any other interference with the vegetation on the respondents' property. Similarly, we have no basis to make any of the other orders sought by the applicant.
The Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Commissioner of the Court
David Galwey
Acting Commissioner of the Court
Lisa Durland
Acting Commissioner of the Court
[3]
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Decision last updated: 11 February 2015