White v Blacket

Land and Environment Court (NSW)|2018-06-15

Background

COMMISSIONER: When Alan and Kerry White (the applicants) constructed their dwelling and pool on their Birchgrove property approximately 18 years ago, a brick wall along the boundary they share with Paul Blacket and Christine Doemling (the respondents) collapsed. Their contractor constructed a new concrete block wall. This wall rises to a height of approximately 2.3 metres above their pool deck, retaining approximately 0.7-0.9 metres of ground on the respondents' land. At that time, a Spotted Gum (the tree) grew in the respondents' garden, close to the boundary wall. It was approximately seven metres in height.
Cracks in the wall were first noticed by the applicants in late 2014, at which time the tree was approximately 20 metres tall. The applicants attribute the damage to the tree. The applicants informed the respondents of the damage in early 2015. The respondents removed the tree shortly afterwards.
The applicants want to rebuild the boundary wall and want the respondents to pay for the works, as their tree caused the damage. The applicants also want access for the works through and on the respondents' property, including access to move all materials to and from the street, and for the storage of all materials.
The respondents value their garden. They dispute that they have contributed to the damage and deny any obligation to either pay for the works or provide access.
The Whites applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for: 1. the respondents to pay for the cost of the works, up to a maximum of $19,471.70, with works to be done from within the respondents' property and the respondents providing uninterrupted access during reasonable hours; or that the works are done primarily from within the applicants' property and the respondents pay for the cost of the works up to a maximum of $28,641.35; 2. the respondents to remove the roots of the spotted gum; and 3. the respondents to pay the applicants' costs.

Framework of the Trees Act

If I am satisfied that the tree caused damage to the Whites' property (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12. The orders may be different to those the applicants seek.
Commissioners of the Court do not have the power to order costs, so if the Whites wish to pursue that part of their application they will need to file a Notice of Motion to be determined by a Judge or the Registrar of the Court.

Evidence

The applicants filed two letters and a structural drawing from David Hall, a consulting engineer. They also filed quotes from Cyrus Soltani, of Archoz Landscape, for rebuilding the wall, with access options as described above, on which they base the orders they seek.
The respondents filed a report from Craig Scheffers, structural engineer for Sellick Consultants, and a survey report from Eric Scerri, a registered surveyor.
Mr Hall, Mr Scheffers and Mr Soltani gave evidence at the onsite hearing.
The survey report shows that the wall is entirely on the applicants' property, adjacent to the common boundary.
Both engineers agree that the existing wall was not properly constructed. They agree that it is not known if the wall is core-filled, but it would have been relatively straightforward to determine this prior to the hearing. At each end, the wall is not core-filled. Had it been properly constructed, it is unlikely that the wall would now be damaged as it is.
It is unclear whether the existing footing below ground level can be used for a new wall. Due to the findings and orders that follow, this is not relevant to my decision.
The wall has been displaced laterally and is leaning. Render is cracked. The engineers agree that the tree is a cause of the damage, but to only a minor degree.
Mr Hall observed the wall when the tree still stood on the respondents' property. He concluded that the tree had caused damage, finding that, near the tree, the wall had been displaced laterally by ~25 mm and was leaning by ~100 mm at its top. This was based on observations; no investigations were undertaken.
Giving evidence at the hearing, Mr Hall stated (paraphrased by me based on my hearing notes): We don't know if the wall was constructed to comply with engineering standards. If it was not core-filled, it would not comply with standards. We know that at its two ends the wall is not core-filled. If the wall was already capped when inspected for certification, the inspector would not be able to determine if it was core-filled. The engineer specifying wall design should have considered the presence of the tree. The pattern of damage indicates that, even if roots have damaged the wall, the wall was not properly constructed. Hydrostatic pressure causes more wall failures than trees and could be a cause here. Apart from any pressure from tree roots, this wall experiences significant hydrostatic pressure and soil pressure. The primary cause of the wall's failure is that it was not properly constructed. The tree then highlighted the wall's defects. The wall should not have been constructed as it was. The wall is now hazardous and needs to be replaced. Above ground level, brick is not required, and the wall could be replaced with timber. An alternative design using props within the applicants' property might allow the existing wall to be retained and repaired.
Mr Soltani described the extent of excavation within the respondents' land required to carry out wall replacement works. Apart from excavation for drainage behind the wall, further excavation would be required beyond that simply to carry out the works. This might severely impact the respondents' camellias and other vegetation. The camellias could be lifted and stored temporarily, to be replanted once works are completed.

The applicants' submissions

Ms Steer, representing the applicants, maintained that, although the wall's construction may be inadequate, the engineers agree that the tree contributed to its damage. The tree needs to be a cause of damage, not the only cause, nor the primary cause, to satisfy the jurisdictional test at s 10(2)(a) of the Trees Act.
Access through the respondents' property should be preferred, Ms Steer argued, not because it would avoid nuisance to the Whites, but because it would be cheaper and result in a lower risk of other damage. There will be damage to the respondents' property regardless of which property is used for access, and some work must be done from within their property.
The applicants opine that the respondents chose the tree species and its planting location. Such a tree is inappropriate so close to a boundary wall. Their choices resulted in damage to the wall, so they should pay for the works.
The applicants asserted during submissions that they do not want alternative options to replacing the wall with another block wall. They do not want a timber fence, and they do not want structures in their property to support the existing wall. They intentionally omitted Mr Hall's drawing (of the second alternative, with supports for the existing wall) from his letter that they filed with the Court (Exhibit D). They asked that the Court does not consider these options.

The respondents' submissions

Mr Blacket pointed out that the engineers agree that the wall's construction was inadequate for its purpose, and their tree only highlighted this inadequacy. It was inevitable that the wall would be damaged. The species and location of the tree were apparent, and the wall was constructed with insufficient consideration for existing conditions.
Mr Blacket referred to the Court's decision in Black v Johnson (No 2) [2007] NSWLEC 513, saying the Court must consider the applicants' decisions when determining apportionment of the costs of remediation. The tree was there when the applicants built the wall to certain (inadequate) specifications.
Mr Blackett argued that there is no evidence to satisfy the jurisdictional test at s 10(2)(a) of the Trees Act, but should the Court find otherwise then no more than 10 - 20% of the costs of remediation should fall to the respondents.
Mr Blackett argued that a timber paling fence along the boundary would be adequate. Such a fence would sit atop a suitably constructed retaining wall.

Findings

I find that the wall is damaged and I accept that the tree contributed to the damage. The engineers agreed on this, and my observations of the wall's displacement, most notable nearest the tree, affirm this. I am satisfied that the tree has caused damage (s 10(2)(a) of the Trees Act), but before making orders I must consider the matters at s 12. Having done so, I mention below those I find most relevant here.
The tree was close to the boundary. However, there is no evidence that it caused damage to the wall that existed when it was planted. The existing wall was constructed next to the tree without considering its likely effects. I find the principle of Black v Johnson (No 2) [2007] NSWLEC 513 applies here, not so much in where the structure was built but how it was built.
In Sait v Mason [2007] NSWLEC 293, the Commissioners dismissed the application that sought compensation for damage caused by neighbouring trees to a pool constructed at the boundary. Mr Sait located the pool on the Masons' boundary rather than locating it elsewhere in his back yard where ample space was available and where it would not have been impacted by the Masons' trees. This meant that the pool came to the nuisance rather than the nuisance coming to it.
Unlike the situation in Sait, the applicants had little choice here in locating the wall - it needed to go next to the boundary and needed to retain soil. But the main cause is that the wall was not engineered for the circumstances. The Whites had an opportunity to construct the wall in a manner that considered existing conditions, but failed to.
The Respondents promptly took action when notified of the damage and removed the tree. Unaware of the issue as they were before then, they could do nothing to prevent damage other than removing a tree which was apparently causing no problems. They have not contributed to the damage and shall not be responsible for paying for repairs. Removing the tree was a cost to the respondents, so they have already contributed in part to the overall solution.
Just as both parties benefit from the wall, both benefited from the tree, which provided amenity to the applicants as well as the respondents.
According to the engineering evidence, the wall needs to be replaced. The suggested cheaper alternative such as a timber paling fence might be suitable, but the applicants stressed that they do not want the Court to consider such an alternative.

Access for the works

The Applicants want access through the respondents' property. This would have significant impacts on the respondents and their garden. In my mind, this is unreasonable. As the applicants' quotes show, the works can be done through their own property, despite limitations resulting in greater costs. There will already be significant impact on the respondents' garden during works and for several years.

Orders

As a result of the foregoing, the orders of the Court are: 1. Within 12 months of the date of these orders, the applicants are to engage an engineer to draw and specify a replacement wall, and engage and pay for a contractor to construct the wall. 2. Access is to be from within the applicants' property. Excavation into the respondents' property is to be minimised; damage to the respondents' vegetation is to be avoided, or minimised where it cannot be avoided. 3. The applicants are to give the respondents 14 days' notice of the works. 4. The respondents are to allow access to their property for excavation and drainage installation along the boundary, but are not required to give access for materials to be stored or transported from the street. 5. If the extent of excavation for the wall and drainage requires removal of the respondents' camellias, the applicants are responsible for lifting, and later replanting, the camellias. In this case, the camellias are to be stored on the respondents' land where the respondents direct. 6. The respondents are responsible for maintaining (watering etc.) the camellias during period of the works. 7. If works in order (1) are not completed within 12 months, all other orders lapse. 8. The exhibits are returned.

D Galwey Acting Commissioner of the Court

Amendments 30 July 2018 - Corrected jurisdiction to Class 2 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: 30 July 2018

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Judgment (9 paragraphs)

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