Levitus v Colvin

[2007] NSWLEC 708

Land and Environment Court

of New South Wales

CITATION:	Levitus v Colvin and anor [2007] NSWLEC 708
PARTIES:	APPLICANT Rosalind Levitus RESPONDENT Mark Colvin and Michele McKenzie
FILE NUMBER(S):	20680 of 2007
CORAM:	Brown C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :- damage to property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	17/10/07
EX TEMPORE JUDGMENT DATE:	17 October 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr M Colvin

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Fakes AC

17 October 2007

20680 of 2007 Rosalind Levitus v Mark Colvin and Michele McKenzie

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Ms Rosalind Levitus of 11 Cecily Street Lilyfield (the site) concerning two trees located close to the common boundary but within 11 Cecily Street Lilyfield owned by Mr Mark Colvin and Ms Michele McKenzie.

2 A spotted gum (Eucalyptus maculata) (Tree 1) is located in the front setback area of the site. It is mature and some 10 m in height with a canopy that spreads partly over the dwelling on the site and the dwelling of Ms Levitus. The trunk is located some 1 m from the common boundary. The tree was in existence when Ms Levitus moved into her dwelling 17 years ago.

3 A European hackberry (Celtis australis) (Tree 2) is located at the rear of the site in the rear courtyard area. It is located close to the boundary and has a significant lean away from the boundary. It is some 6 m in height.

4 The extemporaneous decision was given on site on 17 October 2007 and the judgment reflects the findings given at this time and the background documentation provided as part of the proceedings.

5 In relation to Tree 1, Ms Levitus’ application seeks the:

• repair of the existing retaining wall adjoining Tree 1 and to take preventative measures to ensure that no further damage occurs, and
• repair of existing cracked pavers and to take preventative measures to ensure that no further damage occurs.

6 While accepting that personal risk of injury associated with the failure of the retaining wall is not high, Ms Levitus states that the greatest risk of injury is the possibility of being hit by broken branches or the potential collapse of the adjoining owners verandah that has been damaged by roots from the subject tree.

7 Mr Colvin sought the retention of the tree because of the shade the tree provides and the positive affect on the streetscape.

8 In relation to Tree 2, Ms Levitus’ application seeks the:

• repair the existing retaining wall and timber fence adjoining Tree 2 and to take preventative measures to ensure that no further damage occurs.

9 Ms Levitus states that the 1.8 m high fence on the retaining wall leans precariously and needs repair. The fence is unstable and has been propped with steel bars from her side of the fence for nearly 7 years. She is concerned that it if the props were too fail, there would be damage to her washing line, lawn, garden and courtyard.

10 Mr Colvin did not oppose the removal of the tree and further indicated that the issue of the fencing was the subject of unresolved proceedings before the Local Land Board under the Dividing Fences Act 1991

11 Clause 10(2) of the Trees (Disputes Between Neighbours) Act 2006 provides that:

( 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.

12 In relation to Tree1, we are satisfied that pursuant to cl 10(2) the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property. In the absence of any survey evidence to the contrary we have accepted that the 650 mm high retaining wall was originally located on the property boundary. This was confirmed by Ms Levitus. The age of the retaining wall is uncertain however the appearance would suggest that it was constructed a considerable time ago.

13 The retaining wall was rendered and painted 5 years ago by Ms Levitus. Since this time Ms Levitus states the retaining wall has been pushed into her property by the growth of Tree 1. Large vertical cracks have developed from top to bottom with chunks of the render breaking way. A large bulge has developed where the roots of Tree 1 are pressing against the wall. The paving bricks adjoining the retaining wall have been lifted and cracks have appeared, presumably from the roots of Tree 1.

14 To support her concerns, Ms Levitus commissioned a report from The Arborist Network that confirmed the damage to the retaining wall and path was a result of root activity from Tree 1.

15 Tree 1 is a healthy specimen and from our observations contains no obvious structural defects. It is in an early stage of maturity and would ordinarily be expected to continue growing. We agree with Mr Colvin that the tree makes a positive contribution to the streetscape of the area and for this reason we accept that the retention of the tree is the preferred option.

16 In accepting that Tree 1 should be retained, the concerns of Ms Levitus are valid and need to be addressed. To ensure that Tree 1 is not likely in the near future to cause damage to Ms Levitus’s property, a root barrier would need to be placed on or near the boundary to stop roots travelling into the adjoining property and potentially causing further damage to the pavers and Ms Levitus’s dwelling. We are satisfied that this can only be undertaken as part of the reconstruction of the failed retaining wall. The retaining wall would need to be designed by a practicing structural engineer with appropriate input from an arborist on the root barrier. As no root mapping or detailed analysis has been undertaken of sub soil conditions we propose that excavation for the new retaining wall be undertaken by hand and supervised by a Level 5 arborist. There should be no excavation within 500 mm of Tree 1 unless specifically authorised by the supervising Level 5 arborist. If during the excavation for the new retaining wall, it is the opinion of the supervising Level 5 arborist that the necessary severing of any significant roots is likely to cause failure of the tree, then the tree may be removed.

17 The existing damaged pavers are to be replaced at the time of the construction of the new retaining wall. The cost of the works associated with the replacement of the retaining wall is to be at the full cost of the respondent and carried out within a period of 90 days from the date of this Order.

18 We are not satisfied that the collapse of the adjoining owners verandah is likely in the near future to cause, damage to the applicant’s property and as such would not be a reason to require the removal of Tree 1.

19 In relation to Tree 2, we are satisfied that it may be removed as it appears to be the only practical solution to the damage caused to the existing 450 mm high retaining wall and fence. We note Mr Colvin did not oppose the removal of the tree.

20 Tree 2 is not protected by the councils Tree Preservation Order, adds little to the amenity of the area and could be potentially unstable in the future because of the significant lean. The location of Tree 2, close to the boundary is not sustainable in the longer term as it already touches the existing retaining wall and has resulted in bowing and cracking of the retaining wall. The fence located on the retaining wall is consequently unstable and needs to be propped from Ms Levitus’s property.

21 We are satisfied that pursuant to cl 10(2) the tree is likely in the near future to cause, damage to the applicant’s property unless the failed retaining is reinstated so that the unstable fence can be replaced. The removal of Tree 2 will prevent the existing damage from being exacerbated however the potential still exists for damage to Ms Levitus’s property in the future because of the existing failed retaining wall and the consequent need for any boundary fence to be located on this wall. We accept that there is the potential for damage to the applicant’s property in the near future by the fence falling into Ms Levitus’s property.

22 We also accept that damage extends beyond just physical damage. The Macquarie Dictionary (Second Edition) defines damage as “injury or harm that impairs value or usefulness” (Definition 1). In this case, the usefulness of the rear area of Ms Levitus’s property is adversely by the props holding up the fence and the potential for failure.

23 The cost of the works associated with the replacement of the retaining wall is to be at the full cost of the respondent and carried out within a period of 90 days from the date of this Order. We accept that the issue of the replacement fence is a matter that is appropriately addressed through the current proceedings in the Local Land Board.

24 The Orders of the Court are:

A) The application is upheld, in part.
B) The respondent is to undertake the following works for Tree 1 ( Eucalyptus maculata) :
1) A root barrier is to be placed on or near the boundary to stop roots travelling into 11 Cecily Street Lilyfield.
2) The root barrier is to form part of the reconstruction of the failed retaining wall. The retaining wall is to be designed by a practicing Structural Engineer with appropriate input from an arborist on the root barrier.
3) Any excavation for the new retaining wall be undertaken by hand and supervised by a Level 5 arborist.
4) There is to be no excavation within 500 mm of Tree 1 unless specifically authorised by the supervising Level 5 arborist.
5) If during the excavation for the new retaining wall, it is the opinion of the supervising Level 5 arborist that the necessary severing of any significant roots is likely to cause failure of the tree, then the tree may be removed.
6) The existing damaged pavers are to be replaced at the time of the construction of the new retaining wall.
7) The cost of the works associated with the replacement of the retaining wall is to be at the full cost of the respondent.
8) All work is to be carried out within a period of 90 days from the date of this Order.

C) The respondent is to undertake the following works for Tree 2 ( Celtis australis) :
1) Tree 2 is to be removed.
2) The failed retaining wall is to reconstructed. The new retaining wall is to be designed by a practicing Structural Engineer.
3) The cost of the works associated with the replacement of the retaining wall is to be at the full cost of the respondent.
4) All work is to be carried out within a period of 90 days from the date of this Order.

__________
G T Brown
Commissioner of the Court

___________
Judy Fakes
Acting Commissioner of the Court