Barwick v Tulloh

[2019] NSWLEC 1650

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barwick v Tulloh [2019] NSWLEC 1650
Hearing dates:	20 November 2019; 6 December 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1)   Within 30 days of the date of these orders, each party is to obtain two quotes from suitably experienced builders or contractors with all appropriate insurances to carry out repairs to the boundary retaining wall according to the recommendations in the report of D M Schaefer of Taylor Consulting dated 4 December 2019. (2)   Within 30 days of the date of these orders the parties are to swap quotes and select the cheapest quote, or another if they agree on it. (3)   Within 90 days of the date of these orders, the applicant is to engage and pay for the contractor selected in (2), to carry out repairs to the boundary retaining wall according to the recommendations in the report of D M Schaefer of Taylor Consulting dated 4 December 2019. (4)   Within 14 days of receiving a copy of a receipted paid invoice for the works ordered above, the respondents are to pay the applicant 50% of the quoted amount. (5)   If the respondents do not receive a receipted paid invoice for the works within 120 days of the date of these orders, order (4) lapses. (6)   The parties are granted liberty to relist should any difficulties be encountered in carrying out these orders.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall – who owns the retaining wall – tree should be removed – what repairs are required – who should pay for repairs
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Texts Cited:	2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	Andrew James Barwick (Applicant) Barbara Tulloh (nee Black) (First Respondent) John Tulloh (Second Respondent)
Representation:	A Barwick (Litigant in person) (Applicant) B Tulloh (Litigant in person) (First Respondent) J Tulloh (Litigant in person) (Second Respondent)
File Number(s):	2019/272840
Publication restriction:	No

Judgment

The application

1. The Avalon Beach property of Barbara Tulloh and John Tulloh (‘the respondents’) is upslope of the neighbouring property owned by Andrew Barwick (‘the applicant’). Mr Barwick has a pool in his back garden. The higher land of the respondents’ property is supported by a rock retaining wall on the boundary. Two cypress trees covered in vines on the respondents’ property provided visual screening between the two properties. For a long time vegetation also covered the block wall, hiding a crack near the tree closest to the wall. The tree further from the wall was removed by the respondents after it died. Mr Barwick asked the Tullohs to remove the remaining tree and to repair the retaining wall. Negotiations between the neighbours followed, but when these were unsuccessful Mr Barwick applied to the Court pursuant to s 7 (Part 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for:

• Removal of the tree

• Repairs to the block retaining wall

• Costs of reports (arboricultural and engineering), legal fees and the application filing fee amounting to $2,351.

It is normal for parties to pay their own costs of research and investigation in preparing for a hearing. Commissioners of the Court do not have the power to order costs. Mr Barwick would need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court should he wish to pursue that.

2. The application names Barbara Black as a respondent. Mrs Tulloh explained that although she now goes by her married name, Barbara Tulloh, her former name remains on her property title.

Framework for this decision

3. Before the Court can make any orders, s 10(1)(a) of the Trees Act requires that I be satisfied that the applicant has made reasonable effort to reach agreement with the respondents.

4. Then, s 10(2) of the Trees Act requires that I be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person. If satisfied of this test, I must consider a range of relevant matters set out at s 12 before making appropriate orders to remedy, restrain or prevent the damage, or to prevent injury.

The applicant has made reasonable effort to reach agreement

5. The Tullohs refute that Mr Barwick made a reasonable effort to reach agreement with them. They pointed out that he did not follow through with earlier agreed actions.

6. Mr Barwick has corresponded with the Tullohs via email and in person. His offers, or his responses to their offers, may seem unreasonable to the Tullohs, but they reflect his own position on the matter and he has made some effort to communicate them. I am satisfied that the effort is reasonable.

Has the tree caused damage?

7. Mr Barwick engaged David Hunter, engineer of Northern Beaches Consulting Engineers, who inspected the wall in March 2019. He undertook little in the way of investigations, but concluded that the tree had caused the crack. In his report of 11 April 2019 Mr Hunter recommended removal and replacement of a section of the wall.

8. The cypress tree is in poor condition and is covered by vines. It is close to the boundary and to the retaining wall. The wall is cracked vertically at its closest point to the tree. Soil mass, hydrostatic pressure, and the wall’s age and formation, may all have contributed to the damage, but it was clear from visual observations at the onsite hearing that the tree was a significant factor in the crack’s development.

9. The boundary was marked in places with paint during a recent survey. These marks show that, although the wall slopes away from Mr Barwick’s side towards its top, the wall is on the boundary and is the property of both the Tullohs and Mr Barwick.

10. As I am satisfied that the tree has damaged the applicant’s property, I can make orders after considering the matters listed at s 12 of the Trees Act.

Relevant factors to consider before determining orders

11. The tree is close to the common boundary, and therefore close to the top of the retaining wall.

12. The tree would not require a permit for removal. Cypress trees are listed as species exempt from tree controls by Northern Beaches Council and the property is not in a heritage area.

13. Pruning the tree would not resolve the situation. The tree is in poor condition and is not suitable for retention. The tree and the vines growing upon it contribute to privacy for both parties by providing visual screening. This will be lost with the tree’s removal, but can be restored using new plantings or new structures that comply with relevant planning controls and guidelines.

14. Apart from privacy, the tree does not contribute in any way to social, cultural, amenity or environmental values.

15. The applicant submitted that it is the respondents’ tree that caused the damage. He has not contributed to the wall’s condition and should not pay for its repair. He asked them to remove the tree some time ago. Due to pool safety legislation, he is responsible for replacing or installing a timber fence above the retaining wall.

16. The Tullohs submitted that the damage occurred before they were aware of it. Once they were aware of the damage, they wanted to resolve this issue along with others, but found it difficult to communicate with Mr Barwick. They offered to remove the tree and repair the wall but found Mr Barwick’s demands around this unreasonable. They argued that they should not have to pay for works to improve Mr Barwick’s property, should he gain a better wall than the existing one.

17. Mr Barwick submitted that the retaining wall needs to be replaced entirely, and that this must include consideration of a range of environmental conditions. The Tullohs submitted that the damaged section of the wall could be easily repaired by removing some blocks before reinstalling them with new mortar.

Findings

18. The tree has contributed to the damage. Although it is in poor condition, if it remains it may contribute to further damage. Apart from the loss of some privacy screening between these properties, nothing else of value would be lost by removing the tree. Orders will be made for the tree’s removal.

19. Some vines growing from Mr Barwick’s property may have hastened the tree’s decline, but there is no suggestion that this was an intentional action on his behalf. As the tree is entirely on the Tullohs’ property, they will pay for its removal.

20. There is insufficient information at hand to order repairs to the retaining wall. The parties are to obtain and submit to the Court engineering advice regarding the extent of repairs required.

Interlocutory orders made 20 November 2019

21. The following orders were made at the onsite hearing on 20 November 2019:

1. By 4 December the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree overhanging the applicant’s boundary to no more than 10 cm above ground level. The works must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

2. The respondents are to give the applicant two days’ notice of the works in (1).

3. The applicant is to allow all access required to complete the works in (1) during reasonable hours of the day.

4. By 4 December the applicant and respondents are each to engage a structural engineer to inspect the retaining wall adjacent to the tree and to specify what works are required to ensure its structural integrity (considering the tree is being removed).

5. By 4 December the applicant and respondents are to swap engineering specifications and email copies of each to the Court.

6. On reasonable notice, the applicant and respondents are each to provide access for the other’s structural engineer to inspect the retaining wall and surrounding conditions during reasonable hours of the day.

22. The matter was set down for a further hearing on 6 December 2019 to hear any further submissions relating to the wall repairs and engineering advice.

Repairs to the wall

23. Mr Barwick asked to attend the second hearing via telephone due to medical reasons. The hearing therefore took place via teleconference with Mr Barwick, Mr Tulloh and Mr Tulloh attending.

24. The Tullohs explained that the tree had been removed according to the earlier orders.

25. Mr Barwick’s engineer, David Hunter, did not reinspect the site but shortened and revised his earlier report to recommend that the wall “to the left of the crack line” be removed and rebuilt to match the remainder of the wall (Exhibit E). Mr Hunter recommended removal of the tree’s root ball.

26. The Tullohs’ engineer, D M Schaefer of Taylor Consulting, recommended removal and reinstatement of only those blocks either side of the crack (Exhibit 2). He recommended using new mortar to secure the blocks and renewing weep holes as much as possible.

27. Mr Barwick submitted that the rootball must be removed as per Mr Hunter’s advice. He saw no other difference between the engineers’ advice. When I expressed my view that Mr Hunter seemed to recommend all of the wall to the left of the crack should be replaced, Mr Barwick submitted that he saw no logical need for that. He clarified that, apart from still wanting the root ball removed, he accepted the advice of Mr Schaefer.

28. The Tullohs argued that it would be best not to remove the tree’s root ball, so as not to disturb or destabilise the area. Any roots against the block wall could be cut back as needed to realign the wall during the repair works. They said the wall’s weep holes were not functioning properly and should be renewed.

29. I prefer the minimal approach set out by the Tullohs’ engineer. The evidence so far presented to the Court does not satisfy me that the wall is structurally unstable to the extent that it needs rebuilding beyond the cracked part. I will order repairs in line with those recommendations.

30. Mr Hunter gave no reasons for recommending removal of the tree’s root ball. Roots will no longer be growing now that the above-ground parts have been removed. I prefer the Tullohs’ submissions that the area should be disturbed as little as possible, so I will not order removal of the tree’s root ball.

31. The wall is on the boundary, so belongs to Mr Barwick and the Tullohs. They have all benefited from the privacy provided by the tree, and vines upon it, for many years. The respondents have borne the cost of tree removal. The parties will share the cost of repairing the wall.

Orders

32. As a result of the foregoing, the Court makes the following final orders:

1. Within 30 days of the date of these orders, each party is to obtain two quotes from suitably experienced builders or contractors with all appropriate insurances to carry out repairs to the boundary retaining wall according to the recommendations in the report of D M Schaefer of Taylor Consulting dated 4 December 2019.

2. Within 30 days of the date of these orders the parties are to swap quotes and select the cheapest quote, or another if they agree on it.

3. Within 90 days of the date of these orders, the applicant is to engage and pay for the contractor selected in (2), to carry out repairs to the boundary retaining wall according to the recommendations in the report of D M Schaefer of Taylor Consulting dated 4 December 2019.

4. Within 14 days of receiving a copy of a receipted paid invoice for the works ordered above, the respondents are to pay the applicant 50% of the quoted amount.

5. If the respondents do not receive a receipted paid invoice for the works within 120 days of the date of these orders, order (4) lapses.

6. The parties are granted liberty to relist should any difficulties be encountered in carrying out these orders.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 08 January 2020