Adler v Cohen

[2025] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation:

Adler v Cohen [2025] NSWLEC 1190

Hearing dates:

4 February 2025

Date of orders:

1 April 2025

Decision date:

01 April 2025

Jurisdiction:

Class 1

Before:

Nichols AC

Decision:

The Court orders:

(1) Within 30 days of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to grind all the remaining Hackberry tree roots with a diameter of greater than 50 mm located within 200 mm of the property boundary.

(2) The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) Within 60 days of the date of these orders, the applicant is to engage and pay for a suitable contractor with all appropriate insurances to carry out construction of the retaining wall in accordance with Waverly Council consent DA-267/2023. All works are to be completed within 120 days of the date of these orders.

(4) Within 30 days of the date of the completion of works in order (3) the respondent is to engage and pay for a contractor to construct a new boundary fence located along the top of the new retaining wall on the property boundary. The new boundary fence shall be at a height of 1800 mm, with the bottom 1500 mm being solid and the top 300 mm being open.

(5) The respondent shall provide reasonable access to the property for a contractor to undertake works in order (3).

(6) The application for damages to be paid by the applicant to the respondent is dismissed.

(7) The application for damages to be paid by the respondent to the applicant is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – whether damage to retaining wall caused by tree – apportionment of costs of rectification – whether a retaining wall is a dividing fence

Legislation Cited:

Conveyancing Act 1919 s 177

Dividing Fences Act 1991 s 3, 7, 8, 13A

Land and Environment Court Act 1979 s 22

Trees (Disputes Between Neighbours) Act 2006 part 2 s 7, 9, 10, 12

Trees (Disputes between Neighbours) Regulation 2007

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Texts Cited:

WorkCover NSW Code of Practice for the Amenity Tree Industry.

Category:

Principal judgment

Parties:

Robert Adler (Applicant)
Miles Cohen and Melissa Cohen (Respondents)

Representation:

Robert Adler (self-represented)
Miles Cohen (self-represented)

File Number(s):

2024/412648

Publication restriction:

Nil

Judgement

1. COMMISSIONER: Mr Adler of 29 Robert Street Rose Bay submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act).

2. There is a 12 metre long retaining wall situated between 29 Roberts Road Rose Bay and the neighbouring property owned by Miles and Melissa Cohen, the respondents, of 29A Roberts Road Rose Bay. This retaining wall is located in the rear yard of 29 Roberts Road Rose Bay and was constructed in two parts and at two different times, comprised of a lower and upper section. The lower section of the retaining wall is constructed of reinforced concrete and remains functional. The upper portion of the retaining wall was constructed of masonry, was dilapidated and has been removed. A 900 mm fence which was situated at the top of the retaining wall has also been removed.

3. Previous communication between the parties regarding reconstruction of the upper section of the retaining wall were based on the retaining wall being located exactly on the shared property boundary, and therefore previously acknowledged as a shared asset by both parties. This understanding led the Cohen’s to enter into an agreement with Mr Adler for the replacement of the upper section of the retaining wall and the expenditure of $4,164.44. However, a subsequent Boundary Identification and Feature and Level Survey plan by Wumara Group dated18 March 2022 was accepted during the hearing by both parties to be accurate. This survey plan shows the retaining wall to be located wholly on 29 Roberts Street Rose Bay, the applicant’s property.

4. Mr Adler contends that a now removed Hackberry tree (Celtis occidentalis) located on 29A Roberts Street Rose Bay was the main cause of the failure of the upper section of the retaining wall due to root growth of the tree.

5. Mr and Mrs Cohen accepted that the Hackberry tree was located wholly on their property and in close proximity to the dilapidated retaining wall and organised for the removal and stump grinding of the tree by a contractor. These works were organised and undertaken in a timely manner. The respondents have done nothing nor omitted to do anything to worsen any potential damage caused by the tree. The respondents dispute whether the tree was the main cause of the damage.

The application

6. The applicant, pursuant to s 7 (Part 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), has applied to the Court seeking orders that: the respondents remove the remaining tree roots at their expense, and that being owners of the land on which the tree was located the respondents are responsible for the costs of replacement of the retaining wall because the damage was mainly caused by the tree, and an order for compensation for property damage due to failure of the respondents to clear debris (mulch and sawdust) resulting from grinding of tree roots which resulted in blocked drains and water damage to the applicant’s house. Finally, the applicant also seeks an order for the costs to be shared equally for the construction of a replacement timber fence at 90 cm in height to act as a dividing fence and preserve access to sunlight.

Framework of Part 2 of the Trees Act

7. Part 2 of the Trees Act both enables and confines the Court’s jurisdiction regarding damage or injury caused by trees. The Court must be satisfied of certain matters at s 10 of the Trees Act before making any orders.

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.

8. There is no question that the test at s 10(1) is met as there is ample correspondence between the parties regarding the matter which resulted in the respondents obtaining the required council consent and removal of the Hackberry tree. The respondents dispute that the tree has damaged the retaining wall and therefore argue that s 10(2) prevents the Court making any orders.

9. If I find that the jurisdictional tests at s 10 are satisfied, I can make orders as described at s 9 of the Trees Act, after considering a range of matters set out at s 12. The orders sought by the applicants can be made, or I may make other orders as I see fit.

Expert evidence

10. At the hearing engineering reports were submitted by the applicant (Balas Consulting Pty Ltd dated 17 December 2022, and Landlay Consulting dated 9 December 2024) and the respondent (Engineering Studio dated 13 January 2025). These engineering reports differed in their opinions as to the cause of the displacement (and ultimate failure) of the upper portion of the retaining wall. Balas Consulting concluded that the main cause of the failure of the retaining wall was the growth of the tree and direct pressure from tree roots on the retaining wall that caused the displacement. The Landlay report was mainly a review of the Balas Consulting report with interpretation of supplied photographs of upper section of the retaining wall which had already been removed prior to the report being written, and so did not involve any site inspection of the upper section of the retaining wall. The Landlay report concludes ‘from the photographs supplied…..displacement was caused by pressure imposed by the neighbouring tree’. The Engineering Studio report concluded that the retaining wall was inadequately designed and constructed to support up to 1000 mm of soil due to a lack of drainage and the subsequent hydrostatic pressure behind the wall. Further, it was concluded that the Hackberry tree roots would have ‘exacerbated damage near the front portion of the retaining wall near the tree’.

The applicants’ submissions

11. The applicant submits that the Hackberry tree was the main contributing factor to displacement of the retaining wall and that replacement of the wall was urgently required. In addition, that being owners of the land on which the tree was located, the respondents are responsible for the costs of replacement of the retaining wall because the damage was mainly caused by the tree.

12. The applicant seeks an order for removal of the remaining Hackberry tree roots to facilitate the reconstruction of the upper section of the retaining wall.

13. The applicant seeks an order for compensation for property damage, including carpet cleaning and other expenses incurred, due to failure of the respondents to contain and/or clear debris (mulch and sawdust) resulting from grinding of tree roots which caused blocked drains and subsequent water damage to the applicant’s house.

14. The applicant seeks an order for the costs to be shared equally for the construction of a replacement timber fence at 90 cm in height to preserve access to sunlight previously received.

The respondents’ submissions

15. The respondents argue that the Hackberry tree was not the main contributor to displacement of the upper section of the retaining wall, but that this was due to inappropriate design and construction, leading to excess hydrostatic pressure behind the wall.

16. The respondents are seeking completion of works to reinstate a new upper section of retaining wall (costs to be borne by the applicant) in accordance with consent DA-267/2023, and reimbursement of costs unnecessarily incurred by the respondent. Finally, the respondents seek leave to construct a new 1800 mm timber fence which will be situated on top of the new retaining wall for reasons of privacy and security.

Findings

The retaining wall

17. The retaining wall is located wholly on the applicant’s property. This has been confirmed by survey and agreed by the parties to be true and accurate.

18. The upper and lower sections of the retaining wall were built at different times, using different construction design and building techniques. The lower portion of the retaining wall constructed of reinforced concrete remains functional. No orders for this lower section of the retaining walI were sought, however for clarity, I see no need to make orders for that part of the wall.

19. The upper section of the retaining wall was not fit for its purpose, being of insufficient design and structural strength and lacked the required drainage to cope with the associated hydrostatic pressure. This section of the wall has been removed and needs replacement to support the adjoining land (29A). A DA consent has been obtained from Waverly Council for the required works. Orders for reconstruction of this section of the wall will be made.

20. After review of the engineering reports and an inspection of the site myself, I am satisfied with the conclusion of the Engineering Studio report, that the primary cause of the displacement of the upper section of the retaining wall was inadequate design and construction, however that due to its size and proximity to the retaining wall, the Hackberry tree roots exacerbated this displacement in the area near the tree.

The tree

21. The tree has been identified as a Hackberry (Celtis occidentalis). To a large degree the tree has been removed and no longer poses a threat to the integrity of any existing or new retaining wall or fence. However, there are several smaller roots which remain alive from which new green leaves and shoots still arise. The remaining roots and shoots require removal to allow for a new upper section of the retaining wall to be properly constructed, ensure the tree does not regrow, and also so that the potential for damage and nuisance in the future is avoided. Orders for removal of the remaining tree roots will be made.

Damage caused by tree debris

22. Mr Adler contends that damage to his house from stormwater inundation caused by blocked drains and subsequent flooding originated from leaves and other tree debris (sawdust) from stump grinding of the Hackberry tree and the omission of the respondents to contain or clear away the debris. The works being undertaken to remove the tree and tree roots in order to reconstruct the upper section of the retaining wall were being undertaken with the full knowledge of Mr Adler. The delays in construction and current unfinished state of repair of the upper section of the retaining wall including loose soil and debris are, in large part, a result of Mr Adler’s undertakings and actions. Mr Adler was fully aware of the incomplete works that related to the retaining wall demolition, including tree removal and stump grinding, and could easily have monitored the state of drains on his property and cleaned them as and when necessary. There was no evidence adduced that showed sawdust or debris from the Hackberry tree alone were the main cause of blocked drains. The respondents could not have practically accessed the drains on Mr Adler’s property nor have easily gained knowledge about their condition. Responsibility for property maintenance in relation to leaves and tree debris, cleaning of gutters and drains and the like are a matter for each property owner. The respondents were not negligent in their actions to remove the tree and tree roots or any other part of the works that Mr Adler contends caused inundation. I see no need to make orders for damages caused by inundation.

23. However, if I am wrong in these findings [22], as a matter of discretion the discussion and observations on site did not indicate any exceptional circumstances that would lead the Court to deviate from the Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

The section of wall near the Hackberry tree

24. I am satisfied on the evidence presented and on observations at the onsite hearing that the Hackberry tree has contributed to the damage of the now removed upper portion of the retaining wall. Surface roots of the tree can be seen growing against the existing lower portion of the retaining wall. However closest to the tree, where the roots are and were largest, evidence that the retaining wall was more displaced has not been submitted to my satisfaction to the extent that the tree was the main cause of the displacement, only that it made a contribution to, or exacerbated the displacement. Given the upper section of the retaining has already been removed, I must rely on photographic evidence and the survey plan by Wumara Group. The survey plan shows an even displacement of the upper section of the retaining wall across the entire 12 metre length. Photographs submitted by Mr Adler show displacement of the retaining wall, but clear and definitive evidence of a larger displacement near the tree is lacking. Relying on the Engineering Studio report I am satisfied to the extent required by s 10(2) that the respondents Hackberry tree was a contributing cause of the damage to the upper section of the retaining wall and as such, the Court’s jurisdiction to make orders is engaged.

25. The tree has been shown to have exacerbated damage to the upper section of the retaining wall, thus engaging the Court's jurisdiction, however orders made for any compensation are a matter of discretion after consideration of s 12(h)(i). Given the nature of the retaining wall it appears that, in the main, the displacement was a function of the inappropriate design and construction, including lack of drainage, and the consequential effect of hydrostatic pressure. Apportionment of damage to the upper section of the retaining wall caused by the tree is provided at 26 - 33 below.

Apportionment of the cost of the works

26. The Court has jurisdiction to make orders under the Dividing Fences Act at s 13A if, in proceedings under s 7 of the Trees Act, “…the tree that is the subject of those proceedings has caused, is causing, or is likely in the near future to cause damage to a dividing fence (s 13A(2)(b)(i) of the Dividing Fences Act).

27. At s 3 of the Dividing Fences Act, the definition of fence does not include a retaining wall except where the wall provides “…support necessary for the support and maintenance of the fence”. The now removed timber fence located at the top of the retaining wall, which is a dividing fence, relied on the support of the retaining wall, so the retaining wall is a fence for the purposes of the Dividing Fences Act. It follows that s 13A of the Dividing Fences Act gives this Court the jurisdiction to make orders for the entire retaining wall along the common boundary, now that I have found the respondents tree damaged part of that wall. Court orders in these proceedings should, if possible under the relevant legislation, resolve all matters in dispute between the parties: s 22 of the Land and Environment Court Act 1979.

28. The retaining wall is close to the boundary and is a fence for the purposes of the Dividing Fences Act. It is located wholly on 29 Roberts Street and is the property of the applicant alone. The respondents Hackberry tree has made a minor contribution to the wall’s poor condition, but was found to be not the principal cause of the dilapidation of the wall.

29. Generally, adjoining owners contribute equally to “…the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence” (s 7(1) of the Dividing Fences Act).

30. Even if a ‘sufficient dividing fence’ must be an adequate retaining wall at this site, at s 8 of the Dividing Fences Act the adjoining owners’ contribution is not necessarily equal where damage has been caused by acts of the owners.

8   Contribution where negligent or deliberate act

(1)  Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner.

(2)  Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction.

(3)  In determining an adjoining owner’s liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section.

31. Even though the retaining wall has failed, there is no negligence claim, s 177(2) of the Conveyancing Act 1919 (the ‘Conveyancing Act’), states:

(2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land).

32. The respondents have done nothing to remove support provided by land on their property. A retaining wall can be considered ‘supporting land’, but only where it “…has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land” (s 177(4) of the Conveyancing Act). Therefore, I return to s 8 of the Dividing Fences Act.

32. I estimate the contribution of the respondents tree to the condition of the retaining wall is, at most, 10%. The remaining 90% is due to the inadequate design and construction and overall condition of the retaining wall, which is located wholly on the applicant’s property. It would be appropriate for the respondent to contribute to the retaining wall repair or replacement accordingly.

Matters at s 12

34. The location of the tree was close to the boundary, and removal of the tree has already been undertaken except for some remaining roots and shoots.

35. Consent for removal of the tree was sought and obtained from Waverly Council. No other consent or authorisation was required.

36. The tree had little impact on the surrounding amenity or any other biodiversity or natural value.

37. The tree has been found to have contributed to damage to the applicant’s property.

38. No other action or omission has contributed 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.

39. Steps taken by the respondent including tree removal and stump grinding have been completed except for some remaining roots and shoots.

40. As described in 24 ­­- 25 above other than the tree, inappropriate design and construction of the upper section of the retaining wall contributed to the damage.

41. Neither party’s actions have directly caused the damage. As soon as they were made aware, the respondents removed the Hackberry tree and arranged for stump grinding of the roots. The applicant has taken steps to deal with the damaged retaining wall following advice that it needed replacement, however led the respondents to incorrectly believe the retaining wall was a shared responsibility.

42. The evidence is that the wall is on the applicant’s property, with its back edge running parallel with but not on the common boundary. For all intents and purposes it acts as a boundary retaining wall.

43. The retaining wall must be fit for purpose and the upper section must be replaced. Although the retaining wall is situated wholly on the applicant’s property and was deficient in design and construction and lacked drainage, it was damaged by the tree to a certain degree. Costs of repairing the wall shall be shared by the parties to the proportional extent of the damage (33). As all works will primarily affect the applicants, the applicants shall organise, and pay for, the works according to the consent obtained from Waverly Council as soon as practicable.

44. The respondents shall bear the costs of removal of the remaining tree roots to facilitate reconstruction of the retaining wall.

45. The respondents have agreed to organise and pay for a new dividing fence that will be situated on top of the reconstructed upper section of the retaining wall. The respondents seek leave to build an 1800 mm high fence for security purposes, whist the applicant seeks a lower fence to allow sunlight into the rear yard. On balance I conclude that a fence height of 1800 mm will be suitable for both parties, with the bottom 1500 mm being solid and the top 300 mm being of an open nature such as the examples shown below (Figures 1 and 2). Orders will be made to reflect this outcome.

Figure 1              Figure 2

46. The estimated costs for reconstruction of the retaining wall obtained by the applicant was between $25,000 and $40,000. Costs to be paid by the respondent to the applicant for damage to the retaining wall cause by the tree as a proportion has been assessed to be a maximum of 10%, which would be approximately $4000. This approximately equals the costs already incurred by the respondents in their claim for damages. Prior to committing to expenditure on the wall repair, the respondents could have investigated to ensure an accurate location of the wall was obtained, avoiding any other unnecessary costs. No orders for damages will be made in relation to expenses already incurred by the respondent.

Orders

47. The orders of the Court are:

1. Within 30 days of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to grind all the remaining Hackberry tree roots with a diameter of greater than 50 mm located within 200 mm of the property boundary.

2. The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

3. Within 60 days of the date of these orders, the applicant is to engage and pay for a suitable contractor with all appropriate insurances to carry out construction of the retaining wall in accordance with Waverly Council consent DA-267/2023. All works are to be completed within 120 days of the date of these orders.

4. Within 30 days of the date of the completion of works in order (3) the respondent is to engage and pay for a contractor to construct a new boundary fence located along the top of the new retaining wall on the property boundary. The new boundary fence shall be at a height of 1800 mm, with the bottom 1500 mm being solid and the top 300 mm being open.

5. The respondent shall provide reasonable access to the property for a contractor to undertake works in order (3).

6. The application for damages to be paid by the applicant to the respondent is dismissed.

7. The application for damages to be paid by the respondent to the applicant is dismissed.

P Nichols

Acting Commissioner of the Court

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Decision last updated: 04 April 2025