Owners Corporation of Strata Plan 52066 v Erlikh

[2015] NSWLEC 1548

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Owners Corporation of Strata Plan 52066 v Erlikh & ors [2015] NSWLEC 1548
Hearing dates:	26 November 2015
Date of orders:	24 December 2015
Decision date:	24 December 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See [34]
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation; retaining wall; extent of rectification
Legislation Cited:	Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Category:	Principal judgment
Parties:	Owners Corporation of Strata Plan 52066 (Applicant) Mr M Erlikh (First respondent) Ms V Erlikh (Second respondent) Mr R Wang (Third Respondent)
Representation:	Counsel: Applicant: Ms J Reid Respondents: Dr S Berveling   Solicitors: Applicant: G & B Lawyers Respondents: Comino Prassas
File Number(s):	20604 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of three trees growing on the respondents’ property and the rectification of a sandstone retaining wall and staircase located on the common property of the applicant’s Bellevue Hill premises.

2. The trees in question are growing in the south-western corner of the respondents’ property in close proximity to the common boundary. Tree 1 is a mature Ficus microcarpa var. hillii (Hill’s Weeping Fig), Tree 2 is a dead Eucalypt, and Tree 3 is a mature Cupressus sempervirens (Italian Cypress). An Avocado (Persea americana) is shown on the plans as Tree 4, however its removal is not sought.

3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(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.

4. This test must be applied to each tree the subject of an application. In this case injury is not pressed.

5. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ at [179] notes that in order to engage the Court’s jurisdiction, it will be sufficient if the tree is “a” cause of the damage.

6. The damage said to have been caused by the trees is the displacement of sandstone stairs leading from the applicant’s driveway to a building elevated above parking spaces along the rear north-eastern boundary of the applicant’s property, the displacement of a section of the sandstone retaining wall on the northern boundary and the displacement of an adjoining brick pier.

7. The parties each engaged their own arborists and engineers to provide expert reports or otherwise assist the Court; for the applicant: Mr Peter Castor (Arborist), Mr Mark Manning (Structural Engineer) and Mr Andrew Gibson (Licenced Builder); for the respondents: Ms Catriona Mackenzie (Arborist) and Mr Pak Liu (Structural Engineer).

8. While an option for the retention of T1 was canvassed during the hearing, all experts agree that Tree 1, the Fig, is a cause of the damage to the wall and should be removed. The engineers consider that T2 has contributed to the damage. Mr Liu raises no issue with T3; however Mr Manning states that while he has no specific comments to make in regards to the impact on the wall from T3 and T4, he would require more information on the size of the structural root systems at maturity in order to do so.

9. The arborists agree that regardless of whether Tree 2 may or may not have contributed to the damage, it should be removed on safety grounds. Mr Castor notes that under Woollahra Council’s Tree Preservation Order, dead trees do not require the consent of council for their removal. While there is some debate as to the contribution of Tree 3 to the damage, the arborists agree that its amenity and appearance will be compromised by the removal of T1 and T2 but its future should be left for the third respondent, the new owner of the property, to decide whether or not to apply to council for its removal.

10. On the basis of the expert evidence and on the observations made on site, I am satisfied that T1 and T2 are likely to have caused damage to the applicant’s property and that T1 could continue to do so. I am not satisfied on the evidence that T3 has caused, is causing, or could in the near future cause damage to the applicant’s property. Notwithstanding the finding in regards to T3, as s 10(2) is met for two of the trees, the Court’s powers to make orders under s 9 are engaged.

11. While the parties agree that Trees 1 and 2 should be removed, they disagree on the scope and extent of the restoration of the retaining wall and stairs and the apportionment of the cost of remediation.

12. Before making final orders, it is necessary to consider relevant matters in s 12 of the Trees Act, in particular s 12(h).

13. Based on a search of previous development applications, the best estimate is that the wall was constructed between 1928 and 1938.

14. The retaining wall is described by Mr Manning in his report dated 4 July 2015 and included with the application and claim form (exhibit A) as a gravity sandstone block and mortar type. He notes that there has been mortar loss over time to some of the vertical joints and that there is evidence of repatching. Mr Manning states that the sandstone stairs and the section of the wall to the buttress at the north-eastern end of the first bay exhibit a lean and bowing. He states that the retaining wall movement has been large enough to cause the failure of a brick pier near the staircase. In Mr Manning’s opinion the bowing and displacement of these structural elements has been caused by lateral pressure exerted by the roots of T1 and T2.

15. Mr Liu, the respondents’ engineer, inspected the wall and reviewed material supplied to him. His report dated 11 October 2015 is included in Exhibit 1. In effect, Mr Liu agrees with Mr Manning that the retaining wall is a stone gravity wall of approximately 3m high and extends 18m to the east from the stairs. He considers that the damage due to the root growth of T1 and T2 is limited to the stone wall below the stairs and its return at the top of the stairs. Mr Liu shares Mr Manning’s opinion that the movement also caused the brick pier in front of the stairs to buckle.

16. Just prior to the hearing Mr Liu prepared an alternative and more limited scope of works which was costed by AM Remedial Building Services (Exhibit 3). This proposes removal and replacement of only the most displaced sections of stairs and adjoining walls and removal and replacement of the nearby brick pier.

17. During the hearing the experts agreed that the remainder of the wall is also showing signs of mortar loss and movement. Mr Liu considered the eastern end of the wall to be affected by settlement of the footings/foundations; elsewhere he opined that apart from age, soil pressure and water movement would also have contributed to the overall condition of the wall. He maintains that overall the wall is structurally sound. Mr Liu noted that the gaps in the mortar assist the movement of water through the wall.

18. Mr Manning considers that about 15% of the deterioration of the wall could be attributed to its age.

19. Both engineers discussed the condition of the building supported above the wall, but both experts consider that this has had little impact on the condition of the wall. They agree that when the wall is repaired some propping of the structure will be required.

20. As stated above, the difference between the parties is how much of the wall should be repaired and how much each party should contribute. The parties were advised that when factors other than a tree that have contributed to the damage, some apportionment of the cost of remediation works is usual.

21. During the hearing the engineers agreed that the section of the wall behind the stairs, shown in Figures 1and 3 (Annexure A) , and the stairs shown in Figure 1 and inclusive of a toothed section of wall adjoining the back of the stairs, shown on the left hand side of Figure 2, should be rebuilt. The difference between the parties is that Mr Manning considers that the section of wall in the first car parking bay to the east should be rebuilt to the toothed section on the right hand side of Figure 2. It was also agreed that any rectification of the wall should not commence within 12 months of the removal of trees 1 and 2 in order to enable some resettling of the soil behind the wall.

22. At the conclusion of the hearing, given the differences between them, the parties were directed to prepare draft orders and a scope of works to assist me in my final determination.

23. Unsurprisingly, the parties have come back with significantly different options and apportionment of costs of repair.

24. The applicant presses the full extent of the works recommended by Mr Manning and reimbursement of 85% of the costs of repair. The applicant’s scope of works is detailed and necessitates substantial footings and excavation.

25. The respondents have proposed the alternative and more limited replacement of displaced stonework put forward by Mr Liu in Exhibit 3 and a contribution by the first and second respondents of 15% of the costs of repair.

Findings

26. On the evidence before me, and with the concurrence of both arborists and engineers, I am satisfied that Tree 1 is a likely cause of the damage to the wall and stairs, and must be removed. It is possible that Tree 2 may have contributed to the damage given its proximity to the wall and its size. However as this tree is dead and is caught up in the branches of Tree 1, it should be removed on safety grounds. This work is to be at the expense of the first and second respondents. No orders will be made for the removal of Tree 3; however, this does not prevent the third respondent from making an application to Woollahra Council should he wish to do so.

27. Having heard the discussion between the engineers on the day of the hearing and what I understood was the minimum agreed position outlined in [21] I have determined not to adopt the respondents’ retreat to Mr Liu’s more limited option. Similarly, I am not persuaded by the applicant’s position to extend the reconstruction of the retaining wall to the buttress. Should the applicant wish to do so, any further repairs can be carried out at the applicant’s expense.

28. Orders will be made for the rectification of the wall as marked on Figures 1, 2 and 3 in Annexure A attached to this judgement and the orders.

29. The rebuilding of the wall will require compliance with the National Construction Code (NCC) [formerly Building Code of Australia (BCA)]. From the evidence heard on site, it is possible that the original wall has very limited footings. It is unreasonable for the respondents to have to contribute to elements of the new wall that are of a higher standard than the existing wall. The main issue is the lateral displacement of some sections of the wall and stairs above ground level. Therefore the respondents’ contribution will go to the removal of the stones/ staircase to ground level, the removal of backfill and any roots – only to the extent necessary to replace the stones/ stairs to vertical, and to replace the stones/ stairs. The respondents will also contribute to any necessary temporary propping and securing of the wall during the rebuilding and to rebuilding the brick pier. Any and all propping and securing of the room above the applicant’s car park is to be at the applicant’s expense. Similarly any additional support of the buckled brick pier in the period leading up to the rebuilding of the wall is to be at the applicant’s expense. All excavation below ground level and installation of new footings and a new handrail will also be at the applicant’s expense. Likewise, any engineering requirements before, during or after the reconstruction must be separately negotiated between the contractor, the engineer and the applicant and are to be at the applicant’s expense [See Annexure 2].

30. In considering the apportionment of contributions, given the overall condition of the wall, its age and no account being taken of soil pressure, I have determined that the first and second respondents should be responsible for 70% of the costs of the items identified with [R] in the scope of works attached to this judgement (Annexure B). Items indicated by [A] are to be at the applicant’s expense. These items are to be itemised in quotes from contractors.

31. During the hearing it was mooted that once the agreed section of wall had been removed, there would be an opportunity for the parties to determine whether root growth may be a cause of the partial displacement of the wall in the first parking bay. There was no suggestion of this process being brought back to Court. The parties have included a draft order proposing that either party be granted liberty to restore the proceedings to Court on 24 hours’ notice after the removal of the stone wall. Having reflected on this I have determined that this is counter s 56 of the Civil Procedure Act 2005 and the just, quick and cheap resolution of the matter and no such order will be made. Once the Fig Tree has been removed and its roots poisoned, any further deterioration of that part of the wall will be due to other causes.

32. The applicants have included a survey plan marked up by Mr Manning indicating the extent of excavation he deems necessary to rebuild the wall at his prescribed batter. The survey indicates an excavation of up to 2m into 84 Bundarra Road and 4m into the respondent’s property at 82 Bundarra Road. The Court cannot make orders for any works on a third party’s land unless there is evidence of the owner’s consent. The application did not propose any works on any other property and none will be ordered. The extent of excavation appears excessive and this degree of excavation was not canvassed during the hearing. I agree with Mr Liu’s comments on the proposed scope of works that this extent of excavation may compromise other structures.

33. Given the size of the trees, orders will be made for the all parties, including the applicant, to provide reasonable access for the tree removal to be carried out safely and efficiently. For example, the arborist may require the use of the applicant’s property for some part of the operation.

34. Having considered the evidence and the parties’ positions, the Orders of the Court are:

1. The application is granted.

2. By 1 March 2016, Trees 1 and 2 (Ficus sp. and dead Eucalypt) are to have been removed by an appropriately insured arborist, with a minimum AQF level 3 qualification in Arboriculture. The trees are to be removed to ground level and the stumps ground to a depth of 300mm. Any remaining large woody roots or sections of the stump of the Fig are to be poisoned. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.

3. The first and second respondents are to engage and pay for the arborist and, if necessary, are to advise the applicant and third respondent of the timing of the works.

4. All parties are to provide reasonable access on reasonable notice (2 days) for the purpose of quoting and or the safe and efficient carrying out of the works in order (2) and order (5).

5. By 1 March 2016, the applicant is to obtain three quotations and between them the first and second respondents are to obtain three quotations from an appropriately licenced and qualified contractor for the rebuilding and repair of the sections of retaining wall and stairs shown in Figures 1, 2 and 3 (Annexure A) and in accordance with the General Scope of Works (Annexure B). The quotations are to be itemised so that costs can be fairly apportioned. Should the applicant choose to have any additional repairs undertaken, these are to be separately quoted and marked for the applicant’s attention. The parties are responsible for making the contractors aware of the nominated time frame for the commencement and completion of these works.

6. By close of business 11 March 2016, the parties, either directly or through their solicitors, are to have exchanged quotations and agreed on a contractor. If no agreement is reached, the cheapest quotation is to be selected. The applicant is to engage and pay for the nominated contractor.

7. The works in (5) are to be completed within 120 days of the expiration of a period of 12 months from the date of removal of T1 and T2, otherwise order (9) lapses.

8. Nothing in these orders permits work on a third party’s property unless owner’s consent is obtained in writing before the commencement of any works. This is the responsibility of the applicant. The applicant must advise the nominated contractor of any consent. The applicant must advise the third party of the timing and duration of any permitted works on that party’s property. If no owner’s consent is obtained, the works must be wholly within the applicant’s common property and the respondents’ property.

9. Within 21 days of the receipt of a tax invoice for the completed works in (5) the first and second respondents are to reimburse the applicants 70% of the agreed costs of those items marked [R] on the General Scope of Works in Annexure B.

10. The exhibits, except A, are returned.

_____________________

Judy Fakes

Commissioner of the Court

20604 of 2015 ANNEXURE A (2.36 MB, pdf)

20604 of 2015 ANNEXURE B (10.4 KB, pdf)

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Amendments

12 January 2016 - 'Counsel' on the Cover sheet

Decision last updated: 12 January 2016