Jones and Gunnis v Onisforou
[2018] NSWLEC 1451
•20 August 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Jones and Gunnis v Onisforou [2018] NSWLEC 1451 Hearing dates: 17 July 2018; 20 August 2018 Date of orders: 20 August 2018 Decision date: 20 August 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [25]
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall – tree has been removed – apportionment. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Melissa Jones (First Applicant)
Annette Gunnis (Second Applicant)
Theo Onisforou (Respondent)Representation: M Jones and A Gunnis, litigants in person (Applicants)
T Onisforou, litigant in person (Respondent)
File Number(s): 2018/153563 Publication restriction: No
Judgment
Background
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Theo Onisforou (‘the respondent’) has owned his Surry Hills property for some 20 years, he estimates.
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Melissa Jones and Annette Gunnis (‘the applicants’) purchased the neighbouring property approximately six years ago. In mid-2016 they notified Mr Onisforou that his tree was damaging the retaining wall along their common boundary, and paving and a water pipe on their property. On three occasions (November 2016, February 2017 and July 2017), they engaged a plumber to repair their water pipe, the three visits costing them $605.
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In August 2017, Mr Onisforou applied to Sydney City Council for permission to remove the tree. Council refused permission for tree removal.
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Ms Jones and Ms Gunnis applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for removal of the tree, rectification of the boundary retaining wall and fence, compensation for pipe repairs and costs for reports.
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Commissioners of the Court cannot make orders for costs of reports and other costs of making an application, so if the applicants wish to pursue this they will need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court.
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Following concerns about the stability of the retaining wall, a brief hearing was held in Court on 17 July. I was satisfied from the photographic evidence that the tree had caused damage to the retaining wall, and that it posed a risk of injury and damage due to structural defects in major branches, requiring its removal. Interlocutory orders were made for its removal. At the onsite hearing on 20 August, only its stump remained.
The applicants’ submissions
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The applicants say the boundary retaining wall was not displaced when they purchased their property six years ago. The tree was small then, but grew rapidly after other vegetation was removed from the respondent’s property.
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They say the wall may still be fit-for-purpose if the respondent had removed the tree when first notified of the damage. Although his tree removal application was refused by Sydney City Council, they say he should have appealed that decision.
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The applicants say the wall must be replaced as it cannot be repaired.
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The applicants’ water pipe required repair due to displacement of paving by root growth. They filed three tax invoices totalling $605 for completed repairs, and $429 for further repairs.
The respondent’s submissions
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Mr Onisforou says if the wall is replaced that would be a significant improvement to the applicants’ property, one for which he should not be expected to pay. If the wall is repaired, he would be willing to pay for repairing the section of wall that the Court finds is damaged by his tree.
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Mr Onisforou argues that the wall is an old single-brick structure on a sandstone block footing. Such a wall was clearly not adequately engineered for its purpose. Although he concedes his tree damaged a section of the wall, he says most of the bowed section of the wall is due to its age and inadequate design. He says the onus is on the applicants to demonstrate the extent to which the wall has been damaged by the tree, and they have not done this. Their engineering report does not mention the 7–8 metre section for which they seek orders.
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Mr Onisforou says he is willing to compensate the applicants for the $605 they spent repairing their water pipe.
Findings
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It is clear that the wall has been damaged by the tree. I accept Mr Onisforou’s submission that the wall is old and inadequately engineered for its purpose. However, as the tree has contributed to its damage, the jurisdictional test at s 10(2) of the Trees Act is satisfied and the Court can make orders for the wall.
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The applicants submit that the wall needs replacing. Their engineering report supports this. I accept that the wall’s displacement is now severe and the wall may collapse into the applicants’ property in the foreseeable future. It must be replaced. It would not be possible to replace the wall without removing some parts of the tree’s stump and roots. This prevented any wall replacement being undertaken prior to the tree’s removal.
Apportionment
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Damage to the wall caused by the tree has shortened the wall’s life, requiring its replacement sooner than might have otherwise been necessary. Nevertheless, the wall is clearly not engineered to support the depth of soil it retains, and its failure might be expected in the foreseeable future. A new wall will be an improvement to both properties. I accept Mr Onisforou’s submission that it would be unreasonable for him to pay the total cost of its replacement. There is no clear formula for calculating apportionment, but I consider the following factors in attempting to fairly apportion the cost of the wall.
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Roots grow along the wall for a significant portion of the bowed section. I accept that the tree has contributed to damage along the 7–8 metre section of the wall.
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The wall is likely to be more than 80 years old and is engineered inadequately for its purpose. The tree’s growth against the wall has shortened its functional lifespan by perhaps 10–20 years. The applicants have owned their property for six years. Despite their submission that the wall was not bowed when they purchased, and that damage has mostly occurred in the last two years, I find that some displacement was likely to be present six years ago.
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Mr Onisforou took one year to apply to Council after being notified of the damage. The applicants’ expectation that he should have appealed Council’s decision is to some extent reasonable, given the tree’s growth against the retaining wall and the obvious damage. However, they did not provide any engineering evidence of the damage until the November 2017 engineering report (Exhibit C).
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Due to the tree’s position against the retaining wall, and the age and condition of that wall, with my experience I would expect some damage to occur as the tree grew. However the average home-owner, with limited knowledge of built structures, engineering and tree growth, might not be aware of the likely outcomes. Mr Onisforou relied repeatedly during his submissions on his experience in the construction and development industry. It is reasonable to expect he would be aware of the likely impacts of his tree on the retaining wall. Therefore, I consider his lack of any earlier preventative action is a contributing factor to the wall’s current condition.
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Weighing these factors, the costs of wall repair will be apportioned 33% to the applicants and 67% to the respondent.
Other matters
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A survey is required to determine the boundary location so that the replacement wall can be constructed on the boundary. The costs of this will be shared evenly, with the applicants to organise the survey.
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Access to both properties will be required, with most of the works to be done from within the applicants’ property.
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Orders will include $605 compensation to the applicants for completed plumbing repairs. There is no evidence that any further damage has occurred since the pipe was last repaired. The orders set out in the application do not include an amount for paving repairs, so no orders will be made for that element of the application.
Orders
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As a result of the foregoing, the orders of the Court are:
Within 21 days of the date of these orders the applicants are to engage and pay for a registered surveyor to survey and mark the common boundary between the applicants’ property and the respondent’s property, and provide the respondent with a copy of the survey plan.
Within 28 days of the date of these orders, the respondent is to pay the applicants $605 plus 50% of a receipted paid invoice for the survey.
Within 28 days of the date of these orders the applicants and the respondent are each to obtain two itemised quotes from licensed and suitably experienced building contractors, with all appropriate insurances, for the demolition and rebuilding of the 7–8 metre section of the brick boundary retaining wall with a lattice fence above, built on the surveyed boundary. The wall must be engineered to comply with all standards for a brick retaining wall in this situation. The quotes must allow for and indicate, as a separate and provisional item, the amount for removal of the existing sandstone footing and construction of a suitable footing, should such works be required.
Within 35 days of the date of these orders, the parties are to select the cheapest of the four quotes obtained in order (3), unless they agree on another of the quotes.
The respondent is to engage and pay for the selected contractor to carry out and complete the works quoted in (3) within 120 days of the date of these orders.
The respondent is to provide the applicants with seven days’ notice of the works.
The applicants are to provide all necessary access for the efficient completion of the works during reasonable hours of the day. They may supervise the works if they wish.
During the works, the contractor is to determine if the wall can be constructed on the existing footing or if a new footing is required. The contractor is to provide a written explanation of this determination to the respondent within 24 hours of making this determination. The respondent is to provide the applicants with a copy of the contractor’s written determination regarding the footing within 24 hours of receiving it from the contractor.
Within 14 days of the works being completed, the respondent is to provide the applicants with a receipted copy of the paid invoice for the works.
Within 7 days of receiving the invoice, the applicants are to pay the respondent 33% of the cheapest or otherwise agreed quote in order (4).
The exhibits are returned.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 24 August 2018
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