Liu v Jiang

[2021] NSWLEC 1571

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liu v Jiang [2021] NSWLEC 1571

Hearing dates:

20 July 2021

Date of orders:

28 September 2021

Decision date:

28 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

Orders – see [48]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – retaining wall along boundary – whether trees have damaged the retaining wall – whether the retaining wall needs rebuilding – whether trees need to be removed – other causes of damage – acts and omissions of the parties – apportionment of costs – orders for tree removal and rebuilding retaining wall

Legislation Cited:

Conveyancing Act 1919, s 177

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

Land and Environment Court Act 1979, s 22

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Jones v Moser (No 2) [2021] NSWLEC 1132

Texts Cited:

Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’

Willoughby Development Control Plan

Category:

Principal judgment

Parties:

Pucheng Liu (Applicant)
Fan Frank Jiang (First Respondent)
Hua Holly Ye (Second Respondent)

Representation:

Counsel:
R Chen (Applicant)
L James (Respondents)

Solicitors:
PM Legal Services (Applicant)
Wang Fang & Co Legal (Respondents)

File Number(s):

2021/74609

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: These proceedings concern a tree and a retaining wall in Castle Cove. Pucheng Liu (‘the applicant’) purchased his property almost five years ago. On the back part of his property is a swimming pool. From there the land slopes quickly down to the north towards the northern arm of Middle Harbour. The property to the north is owned by Fan ‘Frank’ Jiang and Hua ‘Holly’ Ye (‘the respondents’). On or close to their common boundary is a retaining wall (‘the retaining wall’), topped by the glass pool fence around the applicant’s swimming pool. The respondents have vegetation on the rear part of their property in front of the retaining wall. The retaining wall has cracks through parts of it. Mr Liu has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking the following orders:

1. Pursuant to s 7 of the Trees Act, removal of trees that are causing damage to a dividing fence/retaining wall located on the boundary between the Applicant’s land and Respondents’ land.

2. Repair the dividing fence/retaining wall damaged by the Respondents’ trees at the Respondents’ expense.

2. During the hearing, the applicant clarified that the application only concerned one tree: T3 (‘the tree’). Issues concerning other trees included in the application were no longer pressed.

The hearing

3. The hearing took place online via audio-visual means. Mr James represented the applicant, and Mr Chen the respondents. Available for oral evidence and questions were three expert witnesses who had prepared reports for these proceedings: arborists Malcolm Bruce (applicant) and Glenyss Laws (respondents); and engineer Gerard Barry (respondents). Other reports and quotes were also in evidence.

4. I informed the parties that the Court would arrange a later onsite inspection if, at the end of the hearing, I determined that would be required for this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that such an inspection would not be required. I bring my own arboricultural expertise and experience to making this decision.

Framework for this decision

5. Jurisdictional tests under Pt 2 of the Trees Act are set out at s 10, where the Court must be satisfied of certain matters before making any orders. Firstly, the Court must be satisfied that the applicant has made reasonable effort to reach an agreement with the tree owners (s 10(1)(a)). Secondly, the Court must be satisfied that the tree concerned 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 (s 10(2)).

6. The Court must also consider a range of matters at s 12 of the Trees Act before (at s 9) making “…such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.”

7. Where a tree has damaged a dividing fence, and orders are sought for fencing work beyond the damaged section, the Court can make those orders pursuant to s 13A of the Dividing Fences Act 1991 (‘the Dividing Fences Act’).

8. The issues requiring most attention in these proceedings, then, are:

• Has tree T3 damaged the applicant’s property?

• Does the tree need to be removed?

• Who owns the retaining wall?

• Is the retaining wall a dividing fence?

• Does the retaining wall require repair or replacement?

• If so, what orders for repair or replacement would be appropriate?

• Who should pay for any works ordered?

The applicant made reasonable effort to reach agreement

9. The applicant visited the respondents to discuss issues regarding trees and the retaining wall in May 2020. They discussed the issues a few times over the next few months. The applicant later wrote to the respondents via his solicitor. The parties were unable to resolve parts of the dispute. The respondents do not dispute that the applicant made reasonable effort. I am satisfied that the applicant’s efforts were reasonable, so the Court is not prevented from making orders at s 10(1) of the Trees Act.

Has T3 damaged the retaining wall?

10. Both arborists, Mr Bruce and Ms Laws, describe the tree labelled ‘T3’ in the application as a Golden Monterey Cypress or Cupressus macrocarpa ‘Aurea’. It seems likely that the tree is a cultivar of Hesperocyparis macrocarpa. T3 grows in the upper back garden of the respondents’ property. Photographs show it is close to the retaining wall at the back of their property. It leans roughly to the north, away from the retaining wall. Ms Laws described the tree as being 1.5 metres from the retaining wall (to the stem centre at ground level). She stated the tree is “…on a partially self-corrected ~53° critical lean to the north”. Mr Bruce described the tree as “…leaning at 60% to the vertical. The lean is away from the retaining wall and appears to be a recent lean, as the branch architecture of the tree has not started to curve back towards the vertical.”

11. Both arborists described the tree’s reliance on tension roots, which for this tree leaning to the north are on its southern side. Ms Laws saw one root 80 mm in diameter, exposed by some minor exploratory excavation, appearing to grow beneath the rock shelf supporting the retaining wall. She thought it is likely that other similar roots would be found deeper in the soil, perhaps growing into rock crevices or footings. Ms Laws observed cracks in the retaining wall near the exposed root. She noted other cracks in the wall, further from the tree and from any of its visible roots, and thought it unlikely that tree roots had caused those cracks, but acknowledged issues of structural damage are outside her field of expertise. Mr Bruce observed the tree’s tension roots, noting “…large cracks radiating out from the point where the roots appear to contact the wall”. Mr Bruce thought the tree’s lean had developed recently, contributing to the cracking in the wall.

12. Charbel Felfleh, a structural engineer, inspected the retaining wall in November 2020 and June 2021 and prepared reports for the applicant. At Mr Felfleh’s earlier visit, dense vegetation on the respondents’ property restricted access to the retaining wall for assessing its condition, but most of this was removed by the time of his second inspection. Mr Felfleh observed both vertical and horizontal cracking in the wall near T3 and found: “Vegetation root pressures at toe of wall causing retaining wall to experience uplift at foundation level.” Observing other significant cracking in the retaining wall, Mr Felfleh found: “Inadequate capacity of gravity masonry retaining wall to withstand retention pressures.” At section 3 of his report, ‘Commentary and Assessment’, Mr Felfleh wrote at pars 7 and 8:

“7. Notwithstanding the above, the cause of the observed damage to the brick retaining wall can be attributed to a combination of the following long-term factors:

• Inadequate structural design and construction in accommodating retention pressures.

• Absence of free draining material to regulate and mitigate hydrostatic build up following general intense rainfall.

• Long term tree roots in front of the retaining wall which induce load on the toe of the retaining wall through age and maturity.

• Poor and dilapidated condition of the retaining wall consistent with age and wear and tear over an extended period of time.

8. In our [sic] opinion, the observed damage and movement to the retaining wall is and has occurred over a long period of time but has been further exacerbated due to the extensive dense vegetation noted along the passive face.”

13. Engineer Gerard Barry prepared a report for the respondents on 8 July 2021. When considering T3, Mr Barry wrote at section 5.4.4 of his report:

“5.4.4 Based on my inspections, I consider that Tree-T3 is not the cause of this wall crack for the following reasons:

5.4.4.1 There is no evidence of heaving at the base of the wall in the way of Tree-T3;

5.4.4.2 While there is evidence of root penetration into the area beneath the rock shelf, there is no evidence of root penetration under the wall.

5.4.4.3 The proximity of the underlying bedrock and surrounding rock shelf prevents normal vertical tree growth. Hence the lean. The bedrock is a barrier to root penetration.

5.4.4.4 Other factors affecting the condition of the wall are additional earth pressures imposed on the wall for each historic increase in the height of the wall and the gradual deterioration as it copes with that increase.

5.4.4.5 A stone wall whose height increases from 1.00-metre to 1.80-metres high has to cope with a threefold increase in earth pressure.

5.4.4.6 A vertical shrinkage crack could also develop in an approximate 15.00-metre long stone wall set rigid mortar joints.

5.4.4.7 Whatever the cause, the effect of Tree-T3 on the wall is of much less structural significance than the abovementioned factors.”

14. For context, I include here a copy of Figure 1 on page 5 of Mr Felfleh’s report, showing the location of the retaining wall. The applicant’s property is to the south of the wall, and the respondents’ to the north. The yellowish foliage of T3 can be seen on the respondents’ property approximately halfway along the wall.

15. Below I include copies of two photos from Mr Barry’s report. The first is Photo 13 from page 14 of his report, showing T3 leaning toward the right of the photo and the boundary retaining wall on the left of the photo. The second is Photo 19 from page 18 of his report showing the crack in the retaining wall behind T3, which can be seen on the right.

16. Mr Barry noted that the vertical crack does not extend into the capping near the top of the wall, which was added when the fence was installed on top of the wall. Although Mr Barry does not identify T3 as “the cause” (5.4.4), he acknowledges it may be a cause by stating at 5.4.4.7: “Whatever the cause, the effect of Tree-T3 on the wall is of much less structural significance than the abovementioned factors.”

17. Despite Mr Bruce’s opinion that the tree’s lean has developed recently, I find it more likely that T3’s lean developed some time ago. Branch growth on the tree’s southern side (to the left in Mr Barry’s Photo 13 above) indicates many years of compensatory growth occurring. Mr Bruce found it likely that some cracking occurred to the wall when the tree’s lean developed. I accept this. This scenario is further supported by Mr Barry’s finding that a more recent addition to the top of the retaining wall has not cracked. While I accept that the retaining wall’s condition is principally a result of its structural inadequacy for its purpose, it seems to me that the size and location of the large crack near T3 are a result of some force from tree root growth beneath the wall.

18. Based on the reasoning above, I find that T3 has caused some damage to the retaining wall.

Consideration of s 12 matters

19. I have considered the matters at s 12 of the Trees Act and discuss those that are relevant below.

Location

20. Tree T3 is close to the common boundary and therefore to the retaining wall. Due to its lean it relies for support particularly on roots to its south, towards the wall. These roots are likely to cause further damage in future. The wall is close to, and provides support for, the applicant’s land and swimming pool.

Consent requirement

21. Pursuant to the Willoughby Development Control Plan, it appears that Willoughby City Council’s consent would ordinarily be required to remove the tree.

Pruning would not be appropriate

22. In my view the risk of whole tree failure, due to its lean and limitations on its root development, is sufficient to justify some mitigation. This species would not respond well to the pruning required to adequately reduce loads on the root zone. Such pruning would reduce the tree’s amenity. Removing T3 would prevent it from causing further damage. Mr Bruce recommended removing the tree. Ms Laws found the tree would require ongoing monitoring due to its critical lean if it is retained. Considering the tree’s relatively limited benefits, this does not seem appropriate. To prevent further damage to the wall that might result from tree failure, orders will be made for T3’s removal.

The tree’s benefits

23. T3 provides limited amenity. In the context of the cleared area of land at the back of the respondents’ property, it is not part of any particular landscape theme, nor does it provide any public amenity. Its environmental benefits are limited. On page 7 of her report, Ms Laws described this tree and others that were originally in the application as “…planted exotic species with limited biodiversity, social or scientific value”.

Other factors causing damage

24. Although T3 has caused some cracking to the retaining wall, I find other factors have made a greater contribution to the wall’s condition. Mr Barry stated the wall was 1.4 metres high at its western end, increasing to 2.8 metres in height at its eastern end. Mr Barry described the apparent history of the retaining wall, relying on a letter from previous property owners and other adduced evidence. On page 4 of his report, Mr Barry wrote:

“2.3.2.2 This 19 August 2004 letter confirms that: the retaining wall was originally a stone wall; it was probably increased in height using bricks during construction of the [applicant’s property address] pool (circa 1995); and notes the addition of a further row of bricks (circa 2004) as part of a new fence.

2.3.2.3 As you advised, this letter was found in Willoughby City Council's files by the Respondent. There is no copy available of the photo referred to in the letter.”

25. Mr Barry included a labelled photograph (Photo 1 on page 5 of his report) showing the different stages of the wall’s construction: the original stone wall, a pre-2004 brick addition on top of the stone wall, and the 2004 addition of further bricks and a pool fence.

26. Photo 20 and Photo 21 on page 20 of Mr Barry’s report show damage at the wall’s eastern end, well away from T3 and unrelated to the tree’s root growth.

27. Apart from the wall’s ad hoc construction, Mr Barry also identified an outward lean of the wall at its eastern end, a lack of adequate vertical joints, and a lack of drainage behind the wall. Mr Barry concluded on page 22 of his report:

“7.2 The dominant factor affecting the retaining wall is its age, condition and variable construction. The eastern half lacks durability, typical robustness and will continue to deteriorate if left as is.

7.3 The brick walls and glass balustrade fences rely on the underlying stone walls for structural integrity. They are near or past the end of their design service life.”

28. Mr Felfleh identified the following factors causing damage (pages 4 and 5 of his report):

“• Inadequate structural design and construction in accommodating retention pressures.

• Absence of free draining material to regulate and mitigate hydrostatic build up following general intense rainfall.

• Long term tree roots in front of the retaining wall which induce load on the toe of the retaining wall through age and maturity.

• Poor and dilapidated condition of the retaining wall consistent with age and wear and tear over an extended period of time.”

29. Relying on the engineering evidence, I find that the retaining wall’s design and construction were inadequate for its purpose. Since the additions to the wall, loads placed on it by the applicant’s land, including the raised soil and water in the soil following rainfall, possibly the pool, and a lack of drainage on his property behind the wall, have combined to cause the wall to deteriorate, leading to its poor condition and for the need for its repair or replacement.

Actions of the parties

30. By leaving tree T3 to grow for some time, the respondents have contributed to some damage to the retaining wall, although I have found that the principal causes of damage and the need for remedy result from other, more significant factors. Those factors appear to stem from actions of previous owners of the applicant’s property. The letter to which Mr Barry referred at par 2.3.2.2 of his report was from the then owner of the respondents’ property to the then owner of the applicant’s property. The content of that letter, dated 19 August 2004, is copied below from Mr Barry’s report.

“Dear Tracey,

We met last Thursday morning, after I had introduced myself to your gardener who was cutting back plantings in our garden bed adjacent to the boundary between our properties. You were confused regarding the boundary of our properties. The boundary is, in fact, the retaining wall which I pointed out to you. It was originally a stone wall (and still is at its lower level) and at some stage (probably when your pool was built) was increased in height using bricks. The wall varies between 5”–6” of the boundary.

You advised that you were putting in a fence but we note that on the 17^th August a row of bricks was added to the existing retaining wall. As the bricks that your builder is using are a completely different colour to the existing bricks, the existing wall doesn’t look great but with the extra row of bricks it looks worse. Please find attached a photo of the wall as seen from our home. We would like to point out that the existing retaining wall already has a couple of cracks in it and we are concerned that it might be adversely affected by the addition of further brickwork which could result in considerable expense to repair. Please advise us of your intentions regarding the wall/fence, as Council does not have any information.”

31. The original stone wall may well have been sufficient for its then purpose, but this is not known. The pre-2004 brick addition may have been sufficient to support some additional soil, but it is apparent from its current condition that it was inadequate for supporting loads from the soil, and possibly the pool, subsequently installed on the higher land south of the wall. The applicant, Mr Liu, now owns that property. Mr Liu has effectively adopted the principal causes of damage to the wall: loads from his raised soil, the water it holds, and possibly his pool, as well as a lack of drainage on his property behind the wall.

Orders for repairing the retaining wall

32. I found above that tree T3 should be removed. In addition to tree removal, Mr Liu seeks an order to “Repair the dividing fence/retaining wall damaged by the Respondents’ trees at Respondents' expense.” Although I have found that only one section of the retaining wall has been damaged by the respondents’ tree, I understand that Mr Liu seeks repairs to the entire wall, whether or not his allegation that neighbouring trees caused all the damage was correct.

32. 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).

33. 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 pool fence atop the retaining wall, which is a dividing fence, relies 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 Act1979.

Nature of works required to the retaining wall

35. In June 2020, Buildfix quoted Mr Liu $2,970 to repair the wall using engineered bars attached horizontally across the face of the wall, effectively stitching together the cracked section. Mr Liu also obtained a “rough cost estimation” from Blue River Project (Affidavit of Feng (Melvin) Zhang 27 June 2021) of $150,000 plus GST to strengthen the existing footing, to strengthen the cracking retaining wall, and to carry out associated site works.

36. In June 2021, Mr Felfleh concluded at section 4 of his final report (affidavit of Charbel Felfleh of 27 June 2021):

“4. Conclusion & Recommendations

At present, the retaining wall is considered to be in poor condition with cracking and damage noted along the entirety of the subject wall.

To prevent any further damage from arising, the immediate short-term response to be undertaken is for the removal of all vegetation within close proximity of the retaining wall, with a 1.5m exclusion zone setup form the base of the wall where no vegetation is to be planted.

In our opinion, further to our inspection on 18 June 2021, the aforementioned retaining wall was found in a beyond than repairable state, and as such requires to be completely demolished and rebuilt in accordance with principals contained in Australian Standard 4678 – Earth-Retaining Structures and the NCC BCA 2019.

Reinstatement of the retaining wall will require the following processes:

Controlled demolition of retaining wall/fence down to footings.

Removal and disposal of backfill including trees and plants inclusive of shoring the cut face.

Reinstatement of retaining wall

Install appropriate free draining backfill and drainage behind the wall facilitate hydrostatic pressures and ensure effective retaining function.”

37. Mr Barry recommended on page 22 of his report of July 2021:

“7.3 The brick walls and glass balustrade fences rely on the underlying stone walls for structural integrity. They are near or past the end of their design service life.

7.4 Any repair, refurbishment or removal and replacement of the retaining wall, must comply with Australian Standard AS 4678-2002 (Earth-retaining structures).

7.5 As a minimum, I recommend that the significant defects noted in 5.4.1, 6.2.1 and 6.2.2 be immediately repaired and made safe; and the commencement of planning for the eventual removal and replacement of the existing retaining wall.”

38. In a supplementary letter of July 2021, Mr Felfleh thought it highly likely that further damage would result within 12 months. He recommended that the wall be demolished and rebuilt within 12 months.

39. Considering the recommendations of both engineers, I find no reason to order minor repairs to a wall that would soon require replacement. Costs can be minimised by carrying out works to the wall once, after which it should be fit for purpose.

Apportionment of the cost of the works

40. The retaining wall is on or close to the boundary and is a fence for the purposes of the Dividing Fences Act. It is the property of the applicant and the respondents. Nevertheless, were it not for the additional soil and other features on the applicant’s land, and loads they place on the wall, a much smaller retaining wall such as the original stone wall might be sufficient. The respondents’ tree T3 has made a minor contribution to the wall’s condition, but its principal causes include loads placed on the wall by the applicant’s raised land, and a lack of drainage on the applicant’s land behind the wall.

41. 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). It could be argued in these proceedings that a sufficient dividing fence would be a lower retaining wall were it not for the raised land on the applicant’s property.

42. Even if a ‘sufficient dividing fence’ must be an adequate retaining wall for current site conditions, 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.

43. Although the retaining wall has not failed, and so there is no negligence claim, s 177(2) of the Conveyancing Act 1919 (the ‘Conveyancing Act’), can be of assistance here.

(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).

44. 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). The adduced evidence demonstrates that all additions to the original stone wall were not required to support land in its natural state, but rather they were to support soil and features added to the land now owned by the applicant. Therefore, I return to s 8 of the Dividing Fences Act.

45. 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 conditions on the applicant’s property. It would be appropriate for them to contribute to the wall’s repair or replacement accordingly.

46. Works to the wall will potentially impact both properties. Given the nature of the works, most activity is likely to take place from the respondents’ land. In making orders, I also consider that conditions on the applicant’s property have caused most damage.

47. The applicant and the respondents are each to obtain two quotes to remove and rebuild the wall. The applicant will bear the responsibility for obtaining all required consent and certification for the wall, with costs of those shared according to the same 90:10 apportionment. The nature of the orders relating to the wall will be similar to those made in Jones v Moser (No 2) [2021] NSWLEC 1132.

Orders

48. Based on the foregoing, the Court orders:

1. The application is granted to the extent of the orders below.

2. Within 4 weeks of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF Level 3) with all appropriate insurances to remove to ground level the cypress tree T3 located near the retaining wall on the southern boundary of their property. These works must be carried out in accordance with the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work.

3. Within 4 weeks of the date of these orders, the applicant and the respondents are each to obtain a quote from a suitably qualified engineer to prepare drawings and specifications for a retaining wall (‘the engineer’s drawings’) along the length of their common boundary (‘the retaining wall’). The retaining wall must meet all relevant standards.

4. Within 6 weeks of the date of these orders, the applicant is to engage the engineer agreed upon by the parties to prepare drawings and specifications for the retaining wall. If the parties can’t cannot agree on the engineer, they are to select the cheapest quote from order (3).

5. The engineer’s drawings must be obtained by the applicant and a copy provided to the respondents within 8 weeks of the date of these orders.

6. Within 10 weeks of the date of these orders, the applicant is to apply for development consent for the demolition of the existing retaining wall and construction of a new retaining wall as per the engineer’s drawings.

7. Within 10 weeks of the date of these orders, the applicant and respondents 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 retaining wall along their common boundary in accordance with the engineer’s drawings.

8. Within 11 weeks of the date of these orders, the applicant is to engage the building contractor agreed upon by the parties, or the building contractor with the cheapest quote if the parties could not agree, to demolish and rebuild the retaining wall along their common boundary in accordance with the engineer’s drawings. The applicant is to request a copy of the contractor’s relevant insurances. The applicant is to provide the respondents with a copy of the insurances.

9. The applicant is to engage a principal certifier and obtain a construction certificate for the works approved under the development consent.

10. The respondents are to provide and not withhold owners’ consent for any applications or forms required to obtain development consent and a construction certificate for the above works.

11. On reasonable notice, the applicant and respondents are each to provide all access required by engineers, builders and others required for quoting, constructing and certifying the retaining wall.

12. Demolition and construction of the retaining wall are to be completed within 26 weeks of the date of these orders.

13. Within 21 days of the receipt of receipted paid invoices for the retaining wall works as per the selected quote, for the engineer’s drawings, and for all associated consent and certification, the respondents are to reimburse the applicant 10% of each invoice amount. Reimbursement is not required for any invoices received later than 30 weeks from the date of these orders.

14. The exhibits are returned, except for Exhibits A, B, F, G and 1. 

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 28 September 2021