O'Neill v Brookes
[2023] NSWLEC 1285
•08 June 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: O’Neill v Brookes [2023] NSWLEC 1285 Hearing dates: 20 March 2023 Date of orders: 08 June 2023 Decision date: 08 June 2023 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [32]
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to boundary retaining wall – whether the tree must be removed – who should pay for the works – orders for tree removal and wall repairs
Legislation Cited: Dividing Fences Act 1991, s 3
Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 10, 12
Cases Cited: Liu v Jiang [2021] NSWLEC 1571
Texts Cited: Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Tree Management Permit Council Policy (adopted by Wollongong City Council 26 August 2013)
Wollongong Development Control Plan 2009
Category: Principal judgment Parties: Luke O’Neill (First Applicant)
Robyn O’Neill (Second Applicant)
Clive Brookes (First Respondent)
Dianne Brookes (Second Respondent)Representation: L O’Neill (Self-represented) (First Applicant)
R O’Neill (Self-represented) (Second Applicant)
C Brookes (Self-represented) (First Respondent)
D Brookes (Self-represented) (Second Respondent)
File Number(s): 2023/12830 Publication restriction: No
Judgment
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COMMISSIONER: Robyn and Luke O’Neill (the applicants) live at their Stanwell Park property, alongside their neighbours, Dianne and Clive Brookes (the respondents). A mature Turpentine tree (Syncarpia glomulifera) (the tree) stands on the respondents’ property adjacent to the common boundary. Their land is upslope from the applicants’ land. A block retaining wall along the boundary supports their higher land. At the base of the tree, the retaining wall is absent for a length of 2 metres, having collapsed some time ago.
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The parties see the need to replace this section of the retaining wall. They have negotiated over the best outcome for several years. In December 2021 they attended mediation, the outcome of which included the general terms of an agreement to replace this section of the retaining wall without removing the tree. However, the applicants then determined that this solution was unfavourable when they realised the extent to which the retaining wall would encroach onto their land. Unable to reach any further agreement with the respondents, the applicants applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking the following orders (summarised here):
Removal of the tree at the respondents’ expense.
Repair of damage to the applicants’ dwelling and paving at the respondents’ expense.
Repair of the damaged section of the retaining wall at the respondents’ expense.
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The respondents propose that their tree is retained, that the damaged section of the boundary retaining wall is rebuilt on the applicants’ land rather than on the boundary, and that the costs of this are shared equally by the parties. They propose that the applicants are responsible for any other repairs to their own property.
Onsite hearing
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The parties were self-represented at the onsite hearing, during which I inspected the tree, the retaining wall, and both properties. Sibone Nadin, consulting arborist, and Mark Chisnall, bricklayer, attended and gave evidence.
Framework for this decision
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Before making orders, the Court must be satisfied that the relevant jurisdictional tests are met. Firstly, the applicants must have made a reasonable effort to reach agreement with the respondents (s 10(1) of the Trees Act). Secondly, the Court must be satisfied that the tree, which must be on land adjoining the applicants’ land (s 7), has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or injury to any person (s 10(2)). Should these tests be met, the Court must consider matters at s 12 before making any orders.
Effort to reach agreement
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Over several years, these neighbouring parties have tried to negotiate an outcome to the issue of the failing retaining wall, without success. They have discussed the issue, corresponded by mail, and attended mediation. Although an agreement was reached during mediation, the applicants subsequently determined it was not viable, for reasons explained later in this judgment. Further efforts to resolve the issue were unsuccessful. Despite their failure to reach agreement, I am satisfied that the applicants’ efforts were reasonable under s 10(1) of the Trees Act.
The tree
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The tree stands on the respondents’ property. It is approximately 18 metres tall with a stem diameter of more than 50 cm. Its broad crown shades both properties and can be seen from the street and the surrounding landscape. The species is locally indigenous – this tree has probably grown naturally, beginning from a seed well before the parties came to these properties. Its crown health appears typical for the species. The tree was apparently struck by lightning approximately 35 years ago. Ms Nadin suggested that several structural defects that can be seen from the ground should be assessed more closely during an aerial inspection carried out by an arborist.
Has the tree damaged the applicants’ property?
Retaining wall
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There is no doubt that the tree has damaged the retaining wall along the common boundary. Along this boundary, the respondents’ land is more than a metre above the applicants’ land. The base of the tree grew against the top of the retaining wall. The tree’s large root collar extends downward into the soil, where its growth pushed against the now failed retaining wall. Other factors, including its age, may have contributed to the wall’s failure, but the tree is its principal cause. Away from the tree, in each direction along the boundary, the retaining wall remains intact and functional. Geoffrey Pryke, structural engineer, concluded that the tree caused damage to the retaining wall and other structures (Exhibits C and D). I find that the tree has caused damage to the retaining wall. Being on the boundary, the wall is partly the applicants’ property.
Dwelling
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The applicants’ dwelling is less than 2 metres from the boundary and the tree. The applicants allege that cracks in the dwelling’s brickwork were caused by the growth of the tree’s roots that extend in this direction. They submitted that there is no other likely cause of this damage. Mr Pryke concluded that the tree caused this damage. Ms Nadin, a consulting arborist, pointed out that no investigation has been carried out to locate tree roots beneath the concrete slab near the dwelling. Despite this, in the absence of any other likely cause, I accept the applicants’ submissions and find that the tree has caused this damage.
Concrete slab
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A concrete slab on the applicants’ property is lifted and cracked. The applicants say this is caused by the tree. Mr Pryke concluded that the tree also caused this damage. Again, Ms Nadin pointed out the lack of any investigation to discover tree roots beneath the slab. Given the proximity of the tree here, I find that the cracking is most likely caused by the tree.
The tree has damaged the applicants’ property
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I find that the tree has damaged the applicants’ property, including their share of the boundary retaining wall, their concrete slab and some brickwork in their dwelling. It follows that the Court can make orders. It is apparent to all that action is required to rebuild the failed section of the wall. The applicants want orders for tree removal and for repairing the wall along the boundary. The respondents proposed a solution for retaining the tree, with a section of the wall to be constructed on the applicants’ land around the tree. Under the respondents’ proposal, the face of the wall would be approximately 300 mm from the boundary. Before determining the appropriate orders, the Court must consider the matters at s 12 of the Trees Act.
Matters considered at s 12 of the Trees Act
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Having considered all matters at s 12 of the Trees Act, I discuss here those that are relevant.
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For the purpose of this decision, I consider both the block retaining wall on the common boundary, and the timber fence atop that wall, as a dividing fence. The fence is required for safety, there being a sufficient fall hazard along the boundary due to the height difference between the land of the two properties. The retaining wall is necessary not only to support the respondents’ higher land, but also to support the fence. Therefore, under the definitions at s 3 of the Dividing Fences Act 1991, the wall is part of the dividing fence, its ownership shared equally by the parties.
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The tree is close to the common boundary, with its base against the boundary retaining wall and less than 2 metres from the applicants’ dwelling.
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Pursuant to Ch E17 of the Wollongong Development Control Plan 2009, Wollongong City Council’s (Council) consent would be required to remove the tree. Council’s Tree Management Permit Council Policy (adopted 26 August 2013) lists “Matters Council takes into consideration when determining an application” on p 7, including:
“…
b. Where the trunk/stem of the tree at ground level is within three (3) metres of:
• The outside enclosing wall of a legally constructed dwelling or outbuilding of over 20 square metres;
…
d. Whether the tree is causing structural damage to a building, structure, water main or sewer. Note: A report may be required by a suitably qualified and experienced consultant where the damage is not visually evident demonstrating that the tree, its trunk, or its root system is causing damage and the damage cannot be controlled by measures such as the installation of a root barricade;
…”
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The tree is within 3 metres of the applicants’ dwelling and has caused damage to the retaining wall and other structures.
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If the tree is retained, it would require aerial inspection by an arborist, and pruning to remove identified hazards. Several large branches that extend over one or both dwellings appear to have structural defects at their points of attachment to the stem. Significant pruning is likely to be required if the tree is retained.
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The tree’s contribution to its surrounding environment is significant. It is part of the local ecosystem, to which it contributes habitat value. It provides shade and cooling to both properties and contributes to public amenity. It contributes to the overall benefits of the urban forest. Its roots may have damaged the retaining wall, but they also form a framework in the soil that contributes to soil stability.
Can the tree be retained, or should the wall remain on the boundary?
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Mr Chisnall described the respondents’ preferred solution for repairing the retaining wall without removing the tree. Piers would be installed into the ground on the applicants’ land, clear of any major roots. Concrete sleepers would be placed between the piers, in the manner of a ‘soldier wall.’ To avoid damage to the tree’s root collar, the back of the sleepers would be offset from the boundary by approximately 200 mm. If sleepers are 75 mm thick, as suggested by Mr Chisnall, the front face of the wall would be almost 300 mm from the boundary. The applicants submitted that they do not wish to give up this amount of land to the retaining wall, as it would interfere with access to their back garden from the path alongside their dwelling. They also pointed out that their sewer pipe is close to the site of proposed piers.
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While I agree with the respondents’ suggestion that their solution would allow successful retention of the tree, I find this would only be acceptable if the applicants were agreeable to the resulting encroachment of the wall into their property. As they do not agree to this outcome, I am not willing to make the respondents’ suggested orders. The wall is, or was, on the boundary, and in the interest of minimising future conflict, it should remain so. Unfortunately, this will require removal of the tree.
Costs of tree removal and wall repair
The tree
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The respondents have lived here for 35 years. They submitted that the wall was cracked when they first came here, and that they observed signs of repair. The applicants came here in 2013, at which time they observed some damage to the wall. Further damage has occurred since, with the section of wall alongside the tree collapsing a few years ago. Mr Chisnall, a bricklayer, gave evidence that the wall was almost 50 years old and that its design and construction were not adequate for the conditions. Nevertheless, we observed onsite that, apart from the section adjacent to the tree, the wall is generally upright, undamaged, functional and safe along the boundary to the tree’s east and west.
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Soon after the applicants moved into their property, they raised some concerns about the tree with the respondents. At that time, they were principally concerned about the risk of injury should branches fall from the tree. The applicants submitted that damage to the retaining wall was a secondary issue, while the respondents submitted that the applicants were, at that time, only concerned about the risk of branch failure or whole tree failure. The parties shared the cost of an arboricultural assessment and report in 2015, provided by Warwick Varley. Mr Varley’s assessment focussed on the tree’s above-ground parts, and found the tree to be a low risk.
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The respondents continued to engage an arborist to prune the tree regularly. The section of the wall next to the tree then collapsed. The parties have been seeking a solution agreeable to all since then.
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The applicants and respondents, as well as the broader community to a lesser extent, have benefited from the tree’s presence. Nevertheless, as is the usual process in such situations, the respondents, being the owners of the tree, will bear the cost of its removal.
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Pursuant to s 6(3) of the Trees Act, the Court’s orders will obviate the need for the respondents to obtain Council’s consent to remove the tree.
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The respondents submitted that they would be unable to grind out the tree’s stump, due to limited access for large machinery. Parts of the root crown near the boundary will need to be ground out to allow replacement of the failed wall section on the boundary, with drainage behind the wall. This can be done with small machinery from within the applicants’ property. Leaving the remainder of the root collar in situ will also minimise changes to soil stability.
The wall
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Apportioning costs of repair to a boundary retaining wall requires consideration of the acts or omissions of the parties (s 12(h) of the Trees Act). Such matters have been considered in similar cases, such as Liu v Jiang [2021] NSWLEC 1571.
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Considering the sequence of events summarised above, I find that the tree caused significant damage to the wall, well before its partial collapse. The tree was not planted by the respondents; rather it is a part of the natural environment. The respondents were not alerted to the wall’s likely collapse, so had no reason prior to its collapse to remove the tree or find an alternative solution. The wall’s damage is essentially an outcome of the unfolding situation, rather than a direct result of the acts or omissions of either the respondents or the applicants. It is therefore reasonable that, following the tree’s removal, the parties share the responsibility for, and costs of, repairing the wall.
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I note here that the applicants offered to share the cost of wall repairs prior to the hearing, on the condition that they did not need to commence these proceedings in Court. After the hearing, they filed amended orders that included costs of the wall repairs being shared equally by the parties if the tree was removed. For reasons given above, I find it reasonable that the parties contribute equally to the cost of the wall repairs.
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Quotes already obtained for repairing or replacing the wall range from $1,870 to $29,210 (Exhibits L–P). This wide range of prices reflects the variation between the scope of works in each quote. Mr Chisnall suggested that the remainder of the retaining wall will be functional for some time, so only the failed section requires replacement. He thought a structural engineer may need to provide specifications for replacing this section of the wall. The parties agreed with this. The Court will therefore make orders for the parties to jointly engage a structural engineer to provide specifications for this section of the wall, and a contractor to construct it. They will also need to jointly apply for any Council consent required to rebuild this section of the wall. Should the parties agree to replacing a longer section of the wall, they may do so within the framework of the orders. Should only one party wish to replace a longer section of the wall, they will need to arrange this separately.
Other damage to applicants’ property
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The extent of damage to other elements of the applicants’ property, being brickwork of their dwelling and the concrete slab near the tree, is relatively minor. The respondents submitted that the slab’s construction did not allow for expansion or movement. The condition of the concrete slab is not significantly worse than others of a similar age in similar situations. Repairs to these elements are a matter for the applicants.
Orders
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The Court orders:
The application is granted to the extent of the following orders.
The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the Turpentine tree to no more than 300 mm above ground level within 4 weeks of the date of these orders. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
The respondents are to engage and pay for a suitably experienced contractor with all appropriate insurances to grind all parts of the tree below ground level within 300 mm of the boundary, or as otherwise specified by the structural engineer. These works are to be completed within 5 weeks of the date of these orders.
The respondents are to give the applicants 2 days’ notice of the works in orders (2) and (3).
The applicants are to allow all access required, including access for grinding equipment, for completion of the works in orders (2) and (3) during reasonable hours of the day.
Within 4 weeks of the date of these orders, the applicants and the respondents are each to obtain a quote from a suitably qualified engineer to prepare drawings and specifications for replacing the failed section of the retaining wall (‘the engineer’s drawings’). The new section of wall must meet all relevant standards.
Within 6 weeks of the date of these orders, the applicants and respondents are to jointly engage the engineer agreed upon to prepare drawings and specifications for the retaining wall. If the parties cannot agree on the engineer, they are to select the cheapest quote from order (6).
Within 8 weeks of the date of these orders, the applicants and respondents are to jointly apply to Wollongong City Council for any consent required for the construction of the retaining wall section as per the engineer’s drawings.
Within 10 weeks of the date of these orders, the applicants and respondents are each to obtain a quote from a licensed and suitably experienced building contractor, with all appropriate insurances, for the retaining wall works in accordance with the engineer’s drawings.
Within 11 weeks of the date of these orders, the applicants and respondents are to jointly engage the building contractor agreed upon, or the building contractor with the cheapest quote if the parties cannot agree, to carry out the retaining wall works in accordance with the engineer’s drawings.
The applicants and respondents are to jointly obtain any construction certification required for the works.
On reasonable notice, the applicants and respondents are to provide all access required by engineers, builders and others required for quoting, constructing and certifying the retaining wall.
Demolition and construction of the retaining wall are to be completed within 20 weeks of the date of these orders.
All costs of the structural engineer, the contractor, permits and certification arising from the orders above are to be paid equally by the parties.
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: 08 June 2023
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