Milne v Berton
[2023] NSWLEC 1430
•08 August 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Milne v Berton [2023] NSWLEC 1430 Hearing dates: 23 June 2023 Date of orders: 8 August 2023 Decision date: 08 August 2023 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [17].
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – retaining wall – whether tree removal is required – orders for tree removal and fencing works
Legislation Cited: Dividing Fences Act 1991, ss 3, 13A
Trees (Disputes Between Neighbours) Act 2006, s 6, Pt 2, ss 7, 10, 12
Cases Cited: Breen & Anor v Caronna & Anor [2008] NSWLEC 293
Texts Cited: Ku-ring-gai Development Control Plan 2023
Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016
Category: Principal judgment Parties: Nicholas Milne (Applicant)
Jane Berton (Respondent)Representation: Counsel:
Solicitors:
N Milne (Self-represented) (Applicant)
T Lupton (Solicitor) (Respondent)
The Property Law Group (Respondent)
File Number(s): 2023/74162 Publication restriction: No
Judgment
Background
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COMMISSIONER: A brick retaining wall (the wall) runs roughly along the common boundary separating the Warrawee properties of Nicholas Milne (the applicant) and Jane Berton (the respondent). The wall supports a brush fence along its top. At its northern end, the wall is cracking and failing. A row of 14 Bhutan cypress trees (the trees) grows on the respondent’s property along this boundary, adjacent to the wall.
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On 6 March 2023, Mr Milne applied to the Court, pursuant to s 7 to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the respondent to remove the trees and replace the wall.
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The final hearing in these proceedings took place onsite on 23 June 2023. The Court observed the wall and the trees before hearing submissions from the parties. The hearing was adjourned for a brief period to allow the parties to negotiate an agreement, resulting in proposed consent orders, summarised here:
Removal of the trees at the respondent’s expense;
Replacement of the wall, with costs of the works and any required consent and engineering specifications to be shared by the parties; and
Replacement of the fence, with costs shared by the parties.
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Before making those orders, I must be satisfied that they are orders the Court can and would make in the circumstances: Breen & Anor v Caronna & Anor [2008] NSWLEC 293. The framework of the Trees Act requires the jurisdictional tests at s 10 to be met before orders are made.
10 Matters of which Court must be satisfied before making an order
The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.
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.
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The Court must also consider matters at s 12 of the Trees Act before making any orders.
12 Matters to be considered by Court
Before determining an application made under this Part, the Court is to consider the following matters:
(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,
(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,
(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,
(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,
(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,
(c) whether the tree has any historical, cultural, social or scientific value,
(d) any contribution of the tree to the local ecosystem and biodiversity,
(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,
(f) the intrinsic value of the tree to public amenity,
(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,
(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:
(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and
(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,
if the applicant alleges that the tree concerned is likely to cause injury to any person:
(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and
(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,
(j) such other matters as the Court considers relevant in the circumstances of the case.
The applicant made a reasonable effort to reach agreement
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The applicant has tried to resolve the dispute with the respondent since November 2022, by way of discussion, emails, phone calls and text messages. While his attempts were unsuccessful until today, I am satisfied that they amount to a reasonable effort to reach agreement (s 10(1)(a) of the Trees Act). I am also satisfied that notice of the application was given as required by s 10(1)(b) of the Trees Act.
The trees have damaged the applicant’s property
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For most of its length, the retaining wall is on the common boundary that divides the parties’ properties. A survey plan by Bee and Lethbridge Pty Ltd, dated 1 May 2007 (Exhibit 2), shows that the northern section of the wall, for several metres from the northernmost point of the applicant’s property, is aligned slightly east of the boundary and is therefore on the respondent’s land. At s 3 of the Dividing Fences Act 1991 (the Fences Act), a dividing fence is defined as: “a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary”. Also, at s 3 of the Fences Act, the definition of fence includes a retaining wall only when the retaining wall is “…necessary for the support and maintenance of the fence”. The wall, which is partly on the boundary and partly alongside it, is necessary for supporting the fence. According to the Fences Act’s definitions, the wall in these proceedings is a dividing fence, in which case it is the property of both the respondent and the applicant.
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Two arboriculturists have assessed the trees and provided written reports: Stuart Sutton (Naturally Trees) for the applicant, and Peter Castor (Tree Wise Men) for the respondent. The arborists’ findings that are not in dispute include:
14 Bhutan cypress (Cupressus torulosa) are planted in a row, offset from the boundary by approximately one metre.
The trees are 40–60 years old and approximately 12–15 metres tall. They were lopped at 6–8 metres above ground around 20 years ago, resulting in poorly attached regrowth.
The trees have contributed to damage of the wall, along with other contributing factors such as other vegetation, including the applicant’s bamboo, and the quality of the wall, which lacks drainage behind it.
The trees should be removed to prevent further damage.
The trees are protected under the Ku-ring-gai Development Control Plan 2023 Part 13 Tree and Vegetation Preservation. Ku-ring-gai Council (Council) would be likely to provide consent for their removal.
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Mr Sutton undertook root investigation near the northern end of the wall. He found several roots from the northernmost cypress growing against the wall near its base.
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Two engineers assessed the wall and provided written reports: Adam Alexander (Crownview Projects) for the applicant, and Ralph Erni (Martens) for the respondent. Both engineers found that the cypress trees contributed to the damage, although to differing degrees. Mr Alexander found the cypress were the primary cause of damage, whereas Mr Erni found that bamboo that grew on the applicant’s property, now removed, was the primary cause of wall damage, with the cypress subsequently causing further damage. Mr Erni included in his report photographs of bamboo runners and shoots, which he said were the initial cause of damage.
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With the benefit of the site view, including inspection of Mr Sutton’s investigation trench, I prefer Mr Alexander’s conclusions over Mr Erni’s. The large cypress roots growing against the wall appear more likely than the bamboo shoots to be the principal cause of wall damage. The bamboo may also have contributed to the damage. Nevertheless, s 10(2)(a) of the Trees Act only requires that the trees be a cause of damage, even if there are others. Both engineers found this to be the case.
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On the evidence set out above, I am satisfied that some of the respondent’s cypress trees have damaged the retaining wall, and that all 14 trees are likely, in the near future, to cause further damage.
Matters at s 12 of the Trees Act
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I have considered all relevant matters at s 12 of the Trees Act. The trees contribute to the landscape value and amenity of both the respondent’s and the applicant’s properties. They provide ecosystem services including shading, cooling, pollution removal and carbon sequestration. If there were reasonable alternatives to their removal, they should be explored. However, the need to avoid damage to structural roots during wall works increases the cost of replacing the wall if the trees are retained. Both Mr Alexander and Mr Erni concluded that replacing the wall without removing the trees would be significantly more complex and expensive than if the trees were removed prior to wall works. Considering the trees’ short useful life expectancies, due to past lopping causing their poor structural condition, those additional costs cannot reasonably be justified. I find that the proposed consent orders are appropriate in the circumstances.
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The trees’ removal would ordinarily require Council’s consent. Mr Sutton expressed his opinion that such consent would be forthcoming if Council was presented with the evidence. Although this has not been tested, I agree this is likely. With the orders below to include tree removal, Council’s consent is no longer required (s 6(3) of the Trees Act). Nevertheless, Council consent would usually include a condition for replanting, so I add below an order for replanting suitable trees along this boundary or elsewhere.
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The trees have not damaged the wall along its entire length, but the parties agree that they wish to replace approximately 25 metres of the retaining wall. With the power provided by s 13A of the Fences Act, the Court can order these fencing works, given that the trees have damaged part of the wall.
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The orders made below reflect the agreed orders put to me by the parties at the conclusion of the hearing, along with an order for replacement planting.
Orders
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The Court orders:
The application is upheld to the extent of the following orders.
The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the 14 Bhutan cypress trees along the boundary shared with the applicant within 30 days of the date of these orders. Tree removal works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
Within 30 days of the date of these orders, the applicant and the respondent are each to obtain and swap two quotes for demolishing the boundary retaining wall and fence and replacing the retaining wall from its northern end to the agreed point approximately 25 metres to the south. The replacement wall is to be of an equivalent standard to the original wall, but must comply with all current standards for such a structure, and must include a proper footing and adequate drainage (for example, see the diagram on page 12 of Mr Alexander’s report (Exhibit D)).
If Council consent and engineering specifications are required for the replacement wall, the applicant is to obtain these and the parties are to share the costs of this equally.
Within 2 days of swapping the quotes in order (3), the applicant and the respondent are to jointly engage the contractor with the quote closest to the average cost of the four quotes, or another quote should they agree, to carry out the quoted works in order (3). These works are to be completed within 90 days of the date of these orders, with the costs shared equally by the applicant and the respondent.
Within 30 days of the date of these orders, the applicant and the respondent are each to obtain and swap one quote for replacing the fence atop the retaining wall for the agreed length of approximately 25 metres with a lap-and-cap timber fence.
Within 2 days of swapping the quotes in order (6), the applicant and the respondent are to jointly engage the fencing contractor with the cheapest quote, or the other quote should they agree, to carry out the quoted works in (6). These works are to be completed within 90 days of the date of these orders, with the costs shared equally by the applicant and the respondent.
The applicant is to ensure that any open excavation caused by his consultants’ investigations on the respondent’s land are backfilled with compacted soil within 2 days of the date of these orders.
The applicant and the respondent are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders.
Within 120 days of the date of these orders, the respondent is to plant 14 trees on her property, in the same locations as the cypress trees or in suitable alternative locations at the respondent’s discretion. The trees must be of species that reach at least 5 metres at maturity.
The applicant is to prevent bamboo regrowth on his property within one metre of the common boundary shared with the respondent.
The exhibits are returned other than Exhibits A and B.
D Galwey
Acting Commissioner of the Court
Decision last updated: 08 August 2023
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