Lapidot v Shaw - [2009] NSWLEC 1051

Land and Environment Court

of New South Wales

CITATION: Lapidot v Shaw [2009] NSWLEC 1051

PARTIES:
APPLICANT
Ami and Gaye Lapidot
RESPONDENT
Joy and John Shaw

FILE NUMBER(S): 21122 of 2008

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- Orders made for demolition of dangerous wall and construction of timber dividing fence.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 05/02/2009

EX TEMPORE JUDGMENT DATE: 5 February 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ami and Gaye Lapidot, litigants in person
RESPONDENT
Mr I. Jones, solicitor
of Buckner Jones Solicitors, Conveyancers and Attorneys

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

5 February 2009

21122 of 2008

Ami and Gaye Lapidot v Joy and John Shaw

JUDGMENT

1 ACTING COMMISSIONER: Three trees, a Fiddlewood, a Sweet Viburnum and an Oleander are growing in a narrow garden on the southern side of the driveway of 50 Yarrabung Road, St Ives. The property is owned by Mr and Mrs Shaw.

2 The trunk of each of the trees is less than 0.5 m from the common boundary with the adjoining property where a brick screen wall has partially collapsed. The wall screens the under-pool area of the adjoining property to the south, from ground level to the concrete deck of the pool which is about 2.4 m high at the eastern end, and 0.6 m high at the western end. The Fiddlewood and Sweet Viburnum trees are both about 7 m tall. They overhang and shadow the pool, and have been heavily pruned in the past.

3 Mr and Mrs Lapidot are the owners of the adjoining property to the south. They have made an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify or prevent property damage. They are concerned about damage to the brick wall, and possible damage to the foundations of their home and swimming pool. They seek orders that the trees be cut to stumps and treated to prevent further growth, and for repairs to the brick wall and adjacent concrete decking of their pool.

4 In response, Mr and Mrs Shaw seek alternative orders that they remove the trees, that Mr and Mrs Lapidot demolish the wall, and that the Shaws pay no more for costs or compensation than half the cost of a new timber dividing fence.

5 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

6 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

7 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

Representation and reports

8 The written evidence of Mr and Mrs Lapidot includes one report:

Tree Inspection Summary by Lawrie Smith of About Trees, dated 15 August 2008.

At the hearing Mr and Mrs Lapidot presented a land survey by Michael Whelan & Associates Pty Ltd, dated 12 July 1985.

9 Mr and Mrs Shaw were represented at the hearing by Mr Ian Jones of Buckner Jones Solicitors. Their written evidence includes the following reports:

Tree report by Murray Bolan of Bolans Tree Services Pty Limited, dated 12 November 2008, and undated letter;
Damage report by E A Bennett of Civil and Structural Engineering Design Services Pty Ltd, dated 5 December 2008;
Building Work report by Terrence Dessaix of Cromer Consulting Services, dated 15 December 2008.

10 I prefer the 1985 survey over the 1972 survey on the basis that it is the most recent and is likely to have used more modern measuring equipment.

11 I note that the Shaws’ reports were filed at the Court on 29 January 2009, two days after the final date set in the Directions for this matter. I also note that at the hearing Mr Lapidot explained that they rely on their Tree Inspection Summary with regard to structural damage to the wall. I took that to mean that they would not have obtained further reports even if they had more time to do so. On that basis I am satisfied that the Lapidots are not disadvantaged by late service of reports by the Shaws, and I have considered those reports in order to better understand the causes of damage to the wall.

A short history of events

12 The parties have differing opinions on many of the events and circumstances leading to this case. I understand the history to be somewhat as follows:

1972 Craig & Rhodes survey of the Shaw property shows eastern end of the wall is 4 ¾ inches (about 121 mm) inside the lapidot property, and the western end is 3 inches (about 76 mm) onto the Shaw property;

c. 1977 Shaws purchased their property;

Shaws say the Fiddlewood and Sweet Viburnum were there when they purchased, and that the wall is exactly the same height as when they bought;

c. 1984 Swimming pool and house extension built on Lapidot property;

Top courses of wall built or rebuilt in extruded hollow core bricks that match those in the Lapidot house extension, to the height of the concrete pool deck. The Shaws say the wall was kept intact when the pool was built, and do not recall any work on the wall;

1985 Michael Whelan survey of Lapidot property shows the wall and swimming pool. The wall is shown 120 mm within the Lapidot property at eastern end, and 20 mm within the Lapidot property at western end. The Lapidots say this would be a different wall to that shown in 1972 as this wall would have been built to screen the swimming pool;

1995 Lapidots purchased their property;

2004 Fiddlewood tree pruned down to the pool fence height (about 3 m tall) by the Shaws at the Lapidots’ request;

2006 Lapidots built lap-and-cap timber fence on their side of the common boundary east of their swimming pool, at their cost because the Shaws would not agree to the type of fencing or contribute to the costs;

c. 2007 Large vertical crack west of the Sweet Viburnum first observed;

2008 Lapidots replaced their wire pool-fencing that was attached by brackets on the side of the concrete pool surround bond-beam, with a colorbond fence attached to the top of the bond-beam.

The western, low end of the brick wall collapsed.

Lapidots pruned both the Fiddlewood and Sweet Viburnum.

The trees

13 The Fiddlewood (Citharexylum spinosum) is located at the western end of the wall and is about 8 m tall. It has a trunk diameter of about 250 mm near ground level. The edge of the trunk is about 500 mm from the wall. The tree looks healthy with dense foliage cover. According to the boundary location on both surveys, this tree is on the Shaws’ property.

14 The Oleander (Nerium oleander) is located about mid way along the wall. It is a small shrub that may have been planted by Mrs Shaw. The Lapidots advised at the hearing that they do not now claim that the Oleander has caused damage, and they no longer seek orders that it be removed.

15 The Sweet Viburnum (Viburnum odoratissimum) is located at the eastern end of the wall and is about 8 m tall. It has a trunk diameter of about 400 mm near ground level. The edge of the trunk is about 70 mm from the wall. The tree looks healthy with dense foliage cover. According to the boundary location on both surveys, this tree is on the Shaws’ property.

The wall

16 The wall is described in Mr Dessaix’ report as a “screen fence originally constructed ….. as a non-load-bearing decorative screen wall, and by way of its construction (one-third brick bonding) would always have been regarded as a ‘slender type’ of construction…”

17 I observed that the western, lower end of the wall has collapsed, there is a large vertical crack just west of the Sweet Viburnum, the wall is leaning towards the Shaws’ property, some parts of the wall are in contact with the pool bond-beam and old metal fence brackets, and the wall is badly dilapidated.

18 I have a comfortable level of satisfaction that at least the lower courses of the wall were present when the Shaws purchased their property in 1977, and that the upper courses were built or rebuilt by the then owners of the Lapidots’ property at about the time when the pool was installed, prior to purchase by the Lapidots.

19 The 1985 survey shows the wall to be entirely on the Lapidots’ property, while the 1972 survey shows the western end crosses the common boundary. In either case, if the wall is entirely on the Lapidots’ property or a common boundary wall, damage to it would be ‘damage to the applicant’s property’, for the purposes of s 10(2)(a) of the Act.

Summary of the reports, and weight given to them

Building Work report by Mr Dessaix

20 This is the most lengthy and detailed of the four reports, addressing numerous identified causes of damage and also reporting his inspection of the condition of the pool and house structure. It states that movement of the steel brackets attached to the pool bondbeam and in contact with the wall “played a significant, if not principal, role in the fracturing and cracking of the top approx. 600 mm of the screen fence” and that tree roots then “would have more easily split the already damaged wall into segments as is now the case.” His final recommendations include immediate demolition of the wall for occupational health and safety purposes.

21 Mr Dessaix’ report also states he “is of the opinion that there is nil cracking to structure #52 and that there is no indication of root attack and footing failure to that structure along its northern walls adjacent to the screen fence or beyond (nor-east end).”

22 On the basis of the detail of investigation, and Mr Dessaix’ explanation of the factors of damage on site at the hearing, I have given his conclusions the greatest weight.

Damage report by Mr Bennett

23 Mr Bennett reports only on the brick wall, not the condition of the pool or house. He concludes that the western end of the wall collapsed due to the movement of the steel brackets that are fixed to the concrete of the pool deck, and were in contact with the brick wall. He says movement of the brackets was caused by expansion and contraction of the concrete pool concourse area. He notes that the foundation section remains at the western end proving that the adjoining shrubs have not undermined the wall.

24 He states that the lower eastern end cracking was possibly due to root growth of the nearby tree, but the wall was also affected by the steel brackets attached to the concrete of the pool. He recommends immediate dismantling of the wall.

25 This short report explains how interaction of the pool structure and the wall has caused damage to the wall. Mr Bennett does not seem to have excavated to find if, or in what manner tree roots may have caused damage, but I have given high weighting to his structural building conclusions.

Tree Inspection Summary by Mr Smith

26 Using calculated, theoretical size of the root plate of each tree, Mr Smith concludes there is a very high potential that the rootplate of the Fiddlewood tree has caused collapse of the western end of the wall, and that the rootplate of the Sweet Viburnum could be lifting a pier of the wall that supports the concrete pool deck. He also concludes that a root of the Sweet Viburnum has caused the crack and lifting of the wall about 0.9 m west of the tree, and that the trees caused earlier damage that was repaired with different bricks.

27 I have given little weight to the conclusions of this report as Mr Smith seems to have wrongly assumed the following structural building matters: that the trees caused previous damage to the wall that was repaired with different bricks; that the brick wall supports the concrete pool deck; and that the footing of the wall at the western end was damaged by the nearby Fiddlewood tree, leading to collapse of that part of the wall. Also, he does not seem to have excavated to find the actual location of tree roots. His conclusions are based on theoretical locations of roots which may be indicative in a root zone with homogeneous soil conditions, but this site has structural impediments and variable conditions of exposure and soil treatment. Further, the root he claims caused the crack which was first observed a year or two ago just west of the Sweet Viburnum, was investigated at the hearing and found to have been hacked off many years ago, and though it has some life it is unlikely to have grown much in recent years.

Tree report and letter by Mr Bolan

28 Mr Bolan claims that damage to the pool area is due to the ‘porous’ state of the brickwork and concrete, then explains that pruning of the trees would have stimulated growth in the root system accelerating any chance of damaging the concrete structures surrounding. His letter claims that movement in the main structures surrounding the pool is basically due to land movement, sinkage and possibly poor building techniques.

29 Mr Bolan states that he is unqualified to comment on the health of a common house brick, and I note that neither of the structural reports identify porous bricks as the reason for damage to the wall, nor that the pool structure has been damaged by land movement or appears to be poorly built. On that basis I have given little weight to Mr Bolan’s comments regarding structural matters. He comments that pruning may have increased the rate of root growth, but provides no evidence that this occurred, nor compares the possible effect of other factors such as rainfall patterns. His general comment that tree roots may have caused damage to the wall is not in conflict with the two structural reports, but those reports find that roots did not damage the western end of the wall, and were not the primary cause of damage. For these reasons I have given little weight to Mr Bolan’s report with regard to structural building matters.

Findings

30 On the basis of the evidence in the two structural reports, I find that the trees are not the principal cause of damage to the brick wall; that damage being caused by pressure of steel brackets attached to the concrete bondbeam of the pool as the beam expanded and contracted with temperature changes.

31 On the basis of the evidence in Mr Bennett’s report, I find that the Fiddlewood tree did not damage the western end of the brick wall where the wall has collapsed. Therefore the Fiddlewood tree does not meet the first two tests in s 10(2)(a) of the Act, and as the wall will be removed it does not meet the third test in s 10(2)(a) or the test in s 10(2)(b) of the Act.

32 I have a comfortable level of satisfaction that the Sweet Viburnum was a secondary cause of damage to the eastern end of the wall. On that basis the tree meets the first test in s 10(2)(a) of the Act and I am able to make orders.

33 I find in accordance with the two structural reports that the wall is dangerous and should be removed.

34 I find that as the wall is the property of the Lapidots, and the principal damage was not caused by the trees, the Lapidots should pay for removal of the wall. Further, even if any of the trees were the principal cause of damage to the wall, I find that the Shaws were only given notice of damage being caused by the trees, by letter dated 31 October 2008. The wall needs to be removed because of damage that existed at that time, so no efforts by the Shaws since then could have saved the wall. On that basis I would also find that the cost of removal of the wall should be paid by the Lapidots.

35 I find on the basis of Mr Dessaix’ report that the trees have not caused damage to the Lapidots’ pool or house.

36 I find that when the wall is removed, there is no reason why the trees cannot remain, so I will not order removal of the trees. The Lapidots seek orders for removal of the trees, and the Shaws have advised that they would consent to an order for removal of the trees. However, I am not obliged to order removal of the trees simply because both parties agree to that removal. The trees are attractive and appear to be healthy, and after removal of the wall the trees are not likely to cause damage or injury.

37 I find that the parties have not been able to agree on boundary fencing in the past, and while the Lapidots want a brick wall rebuilt, the Shaws want a timber paling fence. I find that a timber fence can be built to replace the brick wall, in a manner to accommodate the trees. Also, as this section of fence is not seen from the Lapidots’ house but is in full view from the Shaws’ house, I find it should be built as the Shaws wish. Further, as the Lapidots paid the full cost of the eastern section of timber fence three years ago, I find the Shaws should pay the full cost of this section of fence.

38 In response to Mr Jones' submissions on costs; Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses (including personal expenses). Claims for these costs must be made by a Notice of Motion which is heard and determined by a Judge.

Orders

39 The application is upheld in part, and the Court makes the following Orders that apply to 50 Yarrabung Road, St Ives and to 52 Yarrabung Road, St Ives:

___________________

Peter Thyer

Acting Commissioner of the Court

CITATION:	Lapidot v Shaw [2009] NSWLEC 1051
PARTIES:	APPLICANT Ami and Gaye Lapidot RESPONDENT Joy and John Shaw
FILE NUMBER(S):	21122 of 2008
CORAM:	Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :- Orders made for demolition of dangerous wall and construction of timber dividing fence.
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	05/02/2009
EX TEMPORE JUDGMENT DATE:	5 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Ami and Gaye Lapidot, litigants in person RESPONDENT Mr I. Jones, solicitor of Buckner Jones Solicitors, Conveyancers and Attorneys