Morrison v Ackland

[2022] NSWLEC 1413

Land and Environment Court

New South Wales

Medium Neutral Citation:

Morrison v Ackland [2022] NSWLEC 1413

Hearing dates:

Conciliation conference on 11 May 2022

Date of orders:

10 August 2022

Decision date:

10 August 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [25].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – agreement between the parties – conciliation conference – orders – obstruction of view by Magnolia tree – does the tree form a hedge – damage to retaining wall caused by trees

Legislation Cited:

Land and Environment Court Act 1979, s34(3), s34 (10)

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12; Pt 2A, s 14A

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Category:

Principal judgment

Parties:

Nolene Morrison (Applicant)
John Mervyn Ackland (Respondent)

Representation:

Cassandra Graves (Solicitor) (Applicant)
Nathan Jessop (Solicitor) (Respondent)

Solicitors:
WMD Law (Applicant)
Corbett Jessop Law (Respondent)

File Number(s):

2022/76642

Publication restriction:

No

Judgment

1. COMMISSIONER: John Ackland and Nolene Morrison share a side boundary between their properties, located on a steeply sloping street in Caringbah South, directly overlooking Yowie Bay to the north-west. Mr Ackland’s property is located higher up the hill than Ms Morrison’s.

2. This is an unusual situation for ‘tree matters’, where Mr Ackland submitted an application (File No. 22/9824) with the Land and Environment Court (the Court) on 12 January 2022, pursuant to s 14 of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking pruning of Ms Morrison’s Magnolia grandiflora (Bull Bay Magnolia) (the tree) to remedy a claimed severe obstruction of a view.

3. On 17 March 2022, Ms Morrison also lodged an application with the Court, pursuant to s 7 of Part 2 of the Trees Act seeking to remedy damage that she claims Mr Ackland’s trees are causing to the shared boundary fence and retaining wall.

4. Consequently, directions were made by the Registrar of the Court on 5 April 2022, for the applications to be heard together at a conciliation conference under the jurisdiction of s 34 of the Land and Environment Court Act1979 (LEC Act). For the sake of this judgment, in keeping with the parties intentions under the terms of their subsequent consent orders, Ms Morrison is the applicant and Mr Ackland, the respondent.

On site hearing

5. The conciliation conference was conducted on-site. The Bull Bay Magnolia, located near the centre of the respondent’s front yard, was inspected initially from both properties and Mr Ackland took the Court to observe the view obstruction from both levels of his house. Mr Ackland’s view was clearly obstructed as a result of the tree.

6. Moving to address the issues in Ms Morrison’s application, the hardwood sleeper retaining wall, about 1.5m tall, separates the properties and stabilises Mr Ackland’s land. The applicant indicated where the retaining wall and the integrated fence built above it were being prised out of alignment and damaged by roots from four trees growing closely adjacent to the top of the retaining wall on Mr Ackland’s land. Both parties also noted that normal wear and tear over many years, through the activity of wood decay fungi and associated insects, had contributed to the wall’s deterioration.

7. These trees were correctly identified as Yucca gigantea, Trachycarpus fortunei (Chinese Windmill Palm), Draceana draco (Dragon Tree), and Beaucarnea recurvata (Ponytail Palm). While none of the specimens were especially large, the Yucca and Beaucarnea, in particular, are species with very large swollen trunk bases. Viewed from Mr Ackland’s property, the level of which was just above the top of the retaining wall, these trunk bases were exerting considerable pressure on the retaining wall, and the roots growing down behind the wall were conspicuous and numerous.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. In this respect, both Mr Ackland (under s 14C (1) of the Trees Act) and Ms Morrison (under s 8(1) of the Trees Act) satisfied their respective requirement to provide at least 21 days’ notice of their applications and the terms of any orders sought.

10. Similarly, both Mr Ackland (under s 14E(1) of the Trees Act) and Ms Morrison (under s 10(1)(a) of the Trees Act) satisfied the requirement to make a reasonable effort to reach agreement with the owner of the land on which the tree or trees is, or are, situated.

11. The obvious damage to the retaining wall, and distinct causal nexus between Mr Ackland’s trees and this damage, also satisfies the key requirement of Ms Morrison’s application at s 10(2)(a) of the Trees Act. This says that;

10 Matters of which Court must be satisfied before making an order

…

(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,

Given that the trees need only be ‘a’ cause of damage to satisfy the jurisdiction, s 10(2)(a) of the Trees Act is engaged, enlivening my power to make orders under s 9 of the Trees Act, with consideration of elements in s 12. Relevant aspects of s 12 of the Trees Act were addressed within the parties’ negotiations.

12. A fundamental jurisdictional element pertaining to Mr Ackland’s application under s 14 of the Trees Act was not satisfied. The jurisdictional test process in Pt 2A matters is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] – [22].

13. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?

14. Section 14A(1) states:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

15. The Magnolia in the Morrisons’ front yard is a single specimen tree. Under Pt 2A, the Act applies only “to groups of 2 or more trees”. As a consequence, s 14A(1) of the Act is not satisfied, and therefore the original orders sought by Mr Ackland could not have be made under the Trees Act, in the proper exercise of the Court’s functions.

16. Having said this, consideration of the Morrisons’ Magnolia remained available to the parties in the broader context of the s 34 conciliation conference, and it was included in the final agreement.

17. The conciliation conference was embraced positively by the parties, with draft agreement reached under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties.

18. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 8 June 2022.

19. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the demolition of the retaining wall, and removal of trees from behind it, the framework surrounding agreement on replacement options, and apportionment of payment for the wall replacement. Under the Trees Act, the Court may consider a wide range of factors on the question of apportionment of any damages. These include how long the person making the application has known of the damage; what steps, during that period, have been taken in order to prevent further damage; and what other factors unrelated to the tree might have contributed to or caused some or all damage, as is the case here with wall deterioration also resulting from wood decay. As a result, all these elements to the consent orders may be considered by the Court in the proper exercise of its functions.

20. From their analysis of the site evidence, and the parties’ explanations to me during the conference, the parties conveyed how the requirements of the Trees Act have been satisfied in order to allow the Court to make the agreed orders at [24].

21. With the exception of s 14A(1) of the Trees Act, I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons set out above.

22. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

24. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are as follows.

25. The Court Orders:

1. The applicant and respondent are to engage Roger Boxall within fourteen (14) days from the date of these Orders to carry out a survey peg out to mark the boundary between the applicant’s and the respondent’s properties the cost of which is to be shared equally by the parties.

2. Subject to order 3(c), the applicant and the respondent are to contribute to the replacement of the retaining wall the subject of the proceedings on the basis that the applicant pay 40% of the replacement cost and the respondent pay 60% of the replacement costs excluding any additional costs required for backfill if required which is to be paid 100% by the respondent.

3. The replacement costs the subject of order 2 will be determined as follows:

1. Within 21 days from the date of these orders the applicant and the respondent will each obtain two (2) quotes from licensed, insured and reputable contractors for the removal of the retaining wall and it’s replacement, straight and vertical, from the edge of the double gate to the rear boundary of 10 Frangipani Place, Caringbah, with;

1. in the one instance, concrete sleepers; and

2. in the other instance concrete blocks.

2. Within 7 days of receipt of the quotations the subject of order 3(a), the applicant and respondent must accept the lowest quoted price and do all things and sign all necessary documents and pay all necessary money to engage the contractor with the lowest quotation unless:

1. a party wishes to engage the contractor with a higher quoted price; or

2. A party wishes to engage a contractor who will provide a higher quality materials or different materials than those agreed being concrete sleepers and concrete blocks:

at which time the parties will engage the contractor chosen by that party with the relevant party to be solely responsible for the payment of the difference between the higher quotation and their respective percentage of the lowest quotation, in accordance with Order 2 above.

3. The parties will do all thing necessary to ensure that the replacement retaining wall is to be on the boundary, as defined by the surveyor, or if this is not possible, to be as near as possible to the boundary unless the contractor engaged by the parties deems it unsafe to do so at which time it is to be placed in it’s existing location.

4. The applicant and respondent will each grant access as required to their respective properties to enable the contractor to carry out the contracted works and the applicant will provide access to the respondent and his contractors for the purpose of order 6.

5. Each party is to indemnify the other against any damage caused to the property of the other party due to the incorrect storage of any materials, the placing or removing of any skip bin for the removal of the existing retaining wall or any other damage that occurs during the construction period which is not covered by the contractors insurance.

6. The respondent, before commencement of the works to construct the replacement retaining wall, is to remove from his property the following tree species and their associated root systems:

1. Yucca Gigantea (Yucca);

2. Trachycarpus Fortunel (Chinese Windmill Palm);

3. Draceana Draco (Dragon tree); and

4. Beaucarnea Recurbate (Ponytail Palm).

7. The applicant and respondent must use reasonable endeavours to ensure the contracted works are carried out in a proper and workmanlike manner and are completed expeditiously and, at any rate, within four (4) months of the date of engagement of the contractor.

8. The court notes the agreement between the applicant and the respondent to the effect that the applicant will engage a qualified horticulturalist and/or arborist to advise on the extent to which the magnolia gigantea can be shaped and trimmed without endangering the tree and to act on that advice at the discretion of the applicant and at the sole expense of the respondent.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 10 August 2022