Thomas v Holmes

[2017] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Thomas & anor v Holmes & anor [2017] NSWLEC 1192
Hearing dates:	27 March 2017
Date of orders:	11 April 2017
Decision date:	11 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [47]
Catchwords:	TREES [NEIGHBOURS] Damage to property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991
Cases Cited:	Ghazal v Vella (No 2) [2011] NSWLEC 1340) Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Peter Thomas (First Applicant) Amatrin Pty Ltd (Second Applicant) Glenn Holmes (First Respondent) Kimberley Holmes (Second Respondent)
Representation:	Applicants: Ms L Byrne (Barrister) Respondents: Mr G Holmes (Litigant in person) Solicitors: Applicants: Penklis Lawyers
File Number(s):	386285 of 2016
Publication restriction:	No

judgment

1. COMMISSIONER:   The applicants contend that roots from a mature Eucalyptus robusta (Swamp Mahogany) have caused, and will continue to cause damage to property on land to which they have a legal right. They have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders to be carried out at the respondents’ expense:

• Removal of the tree,

• Rectification of the damage allegedly caused by the tree including damage to a stormwater pipe, stairs, retaining wall, and portico;

• Compensation of $44,713.00, which includes reimbursement of money spent and quotations for rectification works,

• Access to the respondents’ land for quotes and carrying out of work, and

• Replacement of the dividing fence in accordance with s 13A of the Dividing Fences Act 1991

2. The respondents do not wish to remove the tree. They contend that the tree existed prior to the construction of the stairs and portico and that the stairs were built over the tree roots. Amongst other things, the respondents maintain that the masonry wall which supported to portico was inadequate for the purpose and that no drainage material was installed behind it; its failure was therefore predictable. In regards to drainage, the respondents submit that this has been an issue for decades and there is no evidence the problem has been caused by the tree.

Jurisdiction

3. Section 7 of the Trees Act enables an owner of land to apply to the Court for an order to remedy, restrain, or prevent damage to property on the [applicant’s] land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land. The ‘definitions’ in s 3(1) note that ‘owner of land’ includes the occupier of the land.

4. 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.

5. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”. In Robson v Leischke [2008] NSWLEC 152 at [179], Preston CJ determined that the tree, the subject of an application, need only be a cause of the damage in order to engage the Court’s jurisdiction.

6. In this matter, injury is not pressed.

7. According to Ms Byrne, counsel for the applicants, the applicants own land which has the benefit of a registered easement for the right of footway and a right of carriageway together with an easement for drainage over land owned by another neighbour. As such, the application is validly made as the registered easements create a proprietary right and a right to occupy. Other nearby property owners also have the benefit of the easement but do not wish to be joined as parties in the proceedings.

8. The applicants contend that the tree has caused irreparable damage to a portico adjoining the garage, access stairs, fences, drains and retaining walls located on the easement (referred to in this judgement as ‘the applicants’ property).

The tree and relevant background

9. The tree is a mature Swamp Mahogany growing in a retained garden bed wholly on the respondents’ property. The applicants’ arborist, Ms Glenice Buck, who visually inspected the tree on 17 May 2016, describes it as being of good vigour and in good health. With the arboricultural expertise I bring to the court, I concur with this observation.

10. According to photographs in the respondents’ bundle of evidence, the tree may be visible in a 1943 aerial photograph of the area, however, while this is not clear it is possible. Notwithstanding this, the tree appears to have been established when the paving and retaining walls were constructed on the applicants’ land between 1987 and 1990 in conjunction with the construction of the applicants’ dwelling.

11. The respondents purchased their property in 1994. In 1999 North Sydney Council granted development consent for the redevelopment of the respondents’ property. According to the respondents’ evidence, the development was planned to retain existing trees. Photographs in Exhibit 1 show some of the excavation and construction works in the vicinity of the tree. The respondents state that no significant roots or intermediate roots were encountered. The face of the excavated section adjoining the stairs was flanked with unreinforced sandstone flagstones. The respondents assert that these remain stable. During the on-site hearing I observed minor cracks in the mortar between some stones but the walls and the stairs appeared stable and in good order.

12. The applicants rely on Ms Buck’s report (included in the application claim form) and a subsequent letter (Exhibit E) which provides clarification and correction of some elements of her initial report following a further site visit on 23 February 2017. Ms Buck opines that given the relatively restricted area in which the tree is now growing, described by her as essentially a ‘planter box’, and the possibility of previous root removal [presumably due to excavation on both parties’ properties] that there are potential stability problems and insufficient space to support continued growth of the tree. Ms Buck recommends removal of the tree on the basis that; the roots have already impacted on the applicants’ property, the structures are within the [calculated] structural root zone of the tree, the applicants are concerned that the roots will damage any new structures, and removal of roots will risk the health and stability of the tree. In her supplementary letter, Ms Buck notes the opportunistic nature of root growth and opines that the open area at the front entrance, exposed when the wall was removed, would provide more ideal conditions. She also notes that since her previous visit, the water pipe has split and the bank seems more unstable.

Retaining walls and portico

13. There are two retaining walls which the applicants contend have been damaged by the roots of the Swamp Mahogany – a masonry wall near the entrance and lower portion of the access stairs and a treated pine log wall further up the stairs. The lower masonry wall was removed in December 2014; during the on-site hearing, part of the timber shoring was removed to enable the storm water pipe to be observed.

14. Prior to its demolition, the masonry wall supported a portico structure attached to the adjoining garage. Presumably the portico was removed when the wall was demolished.

15. In the application claim form, the applicants state on p4 item 4.2 “The portico structure could become unstable if not removed, replaced or repaired causing unwarranted safety issues”. According to photographs in the exhibits, the timber portico had a tiled roof and guttering, the downpipe of which emptied onto a garden bed at the base of the wall on the street-side of the wall. There is no evidence to indicate that other than being supported by the now demolished retaining wall, there was any direct impact of the tree on the portico.

16. Photographs taken by the applicants in 2012 and included in Exhibit B show a series of diagonal, vertical and horizontal cracks in the rendered brick wall.

17. The respondents submit that the retaining wall was not constructed in accordance with the plans [presumably prepared in or about 1987] for the proposed garage on the applicants’ property, in that the wall was built much higher than shown on the plans. A stormwater drainage pipe sits behind the wall and is supported by concrete screeding. The first respondent, who has experience in architectural matters, prepared a sketch plan of the as-built wall which appears to concur with photographs in the various exhibits. The respondents contend that the double brick wall was not fit for purpose and had no drainage material or equivalent installed behind it and that the likelihood of movement along a horizontal brick mortar joint where the stormwater drain is located was predictable. From the photographic evidence, it appears to me that the horizontal cracks in the wall were in the vicinity of the concrete screeding. Additional photographs in Exhibit B show a number of woody roots that have been pruned along the face of the exposed soil profile. The caption under photograph #31 indicates that nine woody roots of between 40mm and 100mm in diameter were severed.

18. The timber retaining wall in contention is towards the lower end of the main section of stairs as it approaches the return to the street entrance. The alleged damage appears to be an outwards displacement of the treated pine logs. The respondents maintain that the displacement is a consequence of the removal of the paving which was otherwise holding the retaining wall in place. Photographs in various exhibits show a large diameter woody root below a section of timber retaining wall. The applicants rely on the contrast in condition and position between the similar timber retaining wall on the eastern side of the stairs, which they say is in good condition and vertical, and the displaced section on the western side.

Paving/ steps

19. The applicants submit that the tree’s roots have damaged the stairs and resulted in pooling of water at the bottom which has subsequently damaged the garage door. The damage appears to be uplifting/ displacement rather than any material damage to the stairs.

20. It appears from the evidence that the stairs were constructed about 25-30 years ago with clay pavers set into a concrete base.

21. The respondents contend that the stairs were installed above existing tree roots and that no provision was made for the expansion of the roots. The first respondent prepared sketches to illustrate how the stairs and the retaining wall could be reconstructed with an allowance for future growth of the root.

22. Photograph #8, taken in December 2013 purports to show a stair being lifted by roots; the displacement appears minor. However, in the course of investigating root incursions onto the applicants’ property, a section of stairs was removed and several woody roots exposed, including one large diameter root. These roots were observed during the on-site hearing.

Stormwater pipe

23. The applicants maintain that the tree has damaged and broken drainage pipes resulting in excess water spilling over the paths and pooling at the foot of the stairs. Correspondence from 1989, included in the respondents’ evidence, indicates that drainage has been an issue for some time.

24. Photographs in the various exhibits show the exposed section of 150mm diameter stormwater pipe in its position behind the now demolished masonry retaining wall. None of the photographs taken in December 2014 after the wall was removed show any damage to the exposed section of pipe, including the angled portion of joined pipe. “Pipecam” photographs taken by Chatswood Plumbing in December 2016 show one point of separation at a join in an unidentified section of pipe; another photograph in some other unidentified section of the pipe shows one very small root. Only one photograph, #9 in Exhibit B taken on 24 February 2013 of the stairs in the area under the portico shows any evidence of excessive moisture; there is no evidence to prove that this was a consequence of root damage to the stormwater pipe. Apart from the exposed section of pipe, the actual location of the rest of the stormwater pipe is unclear however photographs on p 45 of Exhibit 1 show another section under the stairs.

25. On the day of the hearing I observed that one angled section of joined pipe had separated. I note in Ms Buck’s supplementary letter that she observed this on 23 February 2017. I found one small woody root behind this section of pipe.

Dividing fence

26. The applicants contend that the tree has damaged the dividing fence. They have sought to engage the Court’s powers under s 13A of the Dividing Fences Act 1991 (Fences Act) for orders to replace the dividing fence. Section 13A of the Fences Act is only engaged if the Court’s jurisdiction under s 10(2)(a) is engaged.

27. Photographs in the evidence indicate that the pre-existing dividing fence in the vicinity of the tree was a relatively low timber lattice. According to the respondents’ uncontested evidence, the fence was somewhat dilapidated (an opinion supported by the fencing contractor who supplied a quote for its replacement – included in application claim form), but due to the installation of a pool on their property, the respondents had a new timber fence installed on their property at their cost and the existing fence was left in situ.

28. Photograph #34 in Exhibit B has the caption “Erection of Fence has pushed the retaining wall and old fence across the stairway further destabilising the existing retaining wall.” The photograph shows the new fence and an apparently displaced section of lattice in the lower/mid-section of the stairs. The caption indicates that the installation of the fence, rather than the tree, is the cause of the displacement.

Other orders

29. The applicants are seeking orders for compensation including the cost of investigative work and expert reports.

30. Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought by either party, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. Additionally, the onus is on an applicant to provide the evidence of causation and thus the factual basis required in order for the Court’s jurisdiction to be engaged.

Findings

31. I am satisfied that the roots of the tree are a cause of the damage to the lower masonry wall and s 10(2) is satisfied for this element of the claim. Similarly, I am also satisfied that the roots are a cause of the minor and recent separation of the angled and joined section of stormwater pipe located behind the masonry wall.

32. There is no evidence to prove that the tree is causing, has caused, or is likely in the near future to cause any damage to any other part of the stormwater drain.

33. I am not satisfied to the extent required by s 10(2)(a) that the tree had damaged the portico except to the extent that the wall provided support. The removal of the portico was incidental to the removal of the wall. It is presumed that the applicants elected to remove the structure rather than provide temporary support.

34. There is clearly a large root under the section of timber wall, while there is a hypothetical possibility that this may have contributed to the displacement, there is no probative evidence that this, or any other root, has caused any damage to the wall sufficient to satisfy the jurisdictional tests in s 10(2)(a).

35. In regards to the fence, on the evidence before me, there is nothing to indicate that the tree has caused, is causing, or could in the near future cause damage to the dividing fence. As s 10(2)(a) of the Trees Act is not met, s 13A of the Fences Act cannot be applied. This element of the application is dismissed.

36. I am satisfied that the large woody root from the tree has displaced the paved stairs and its continued growth could lead to future damage..

37. As the Court’s jurisdiction is engaged for the masonry wall, one section of stormwater pipe, and a section of paving, in determining what, if any, orders should be made, I must consider the relevant discretionary matters in s 12.

38. In general terms, I am satisfied that the tree contributes to the amenity of the respondents and the public; it contributes to the landscape character of the area. The tree contributes to the local ecosystem and to biodiversity; photographs included in the respondents’ evidence show its use by a Tawney Frogmouth. The tree is relatively close to the common boundary.

39. Section 12(b2) considers the impact of any pruning on the tree. The only pruning relevant to this matter is root pruning. I agree with Ms Buck that severing the large woody root growing under the stairs, and any other large woody roots, could seriously compromise the health and stability of the tree.

40. In my view, s 12(h) is most relevant – that is, anything other than the tree that may have contributed to the damage and steps taken by the parties.

41. I am satisfied on the evidence provided by the respondents and observed on site that the original masonry wall was not constructed as a retaining wall and appears to have been constructed higher than shown on the plans for the proposed garage. It is open for me to find that apart from its construction, including the lack of any drainage material, that upslope pressure from soil and water, as well as some contribution from root growth, is likely to have contributed to the initial cracking of the wall. The contribution of the portico to the wall’s stability is unknown.

42. In regards to the section of stormwater pipe, it would appear that while a root may have exerted some pressure on the separated section observed at the hearing that this is a relatively recent occurrence. Photographs show that when the wall was removed in late 2014 there was no separation and therefore the alleged drainage problem was not attributable to any part of the exposed pipe or any proven interference by roots of the tree. Apart from the small woody root I observed, it is also feasible that continued erosion of the exposed soil has contributed to some dislodgement of the exposed pipe.

43. Having considered the evidence before me and taking note of the parties’ positions, in particular the respondents’ strong desire to retain the tree, I have made the following conclusions.

44. Should the respondents elect to retain the tree orders will be made for the reconstruction of the lower masonry retaining wall in a manner generally consistent with the sketch plan on p 23 of Exhibit 1. The respondents are to contribute 60% of the cost of the construction excluding design and certification which is to be at the applicants’ cost. The apportionment of contributions reflects my findings on other likely contributory factors. The rectification of the wall is to include the installation of a solid/ reinforced conduit through which the lower portion of stormwater pipe can be directed.

45. Orders will also be made for the design and installation of stairs to replace the removed section identified in the photographs, on the survey prepared by Geoffrey Browne, Surveyor on 12.02.1016 (included in the application claim form) and on site during the hearing. The stairs are to be designed and installed to bridge all woody roots in that section of 50mm or greater in diameter and to make allowance for their expansion; the stairs need not necessarily be of the same material as the original stairs but must be durable and functional. That is, no roots of 50mm or more in diameter are to be cut. The respondents are to pay 90% of this work, including design. Any rectification of the adjoining timber retaining wall will be at the applicants’ expense. The discount is on the basis that the extent of paving removed exceeds the area affected by the roots.

31. However, should the respondents apply for and receive consent from North Sydney Council, as a relevant consent authority (see Ghazal v Vella (No 2) [2011] NSWLEC 1340) to remove the tree and the tree is removed before the stairs are rebuilt, the replacement of the stairs is to be limited to like with like.

Orders

47. The Orders of the Court are:

1. The application to remove the tree is dismissed.

2. Within 30 days of the date of these orders, the applicants are to engage and pay for a suitably qualified engineer/ architect/ landscape architect to design a masonry retaining wall and section of stairs as described in paragraphs [44] and [45] above. The respondents are to be provided with a copy of the designs.

3. Within 60 days of the date of these orders the parties are to have obtained and exchanged up to two quotes each for the costs of implementing the designs for the stairs and retaining wall. In addition, in the event that the tree is removed, the quote for the stairs is to include an option of replacement of the existing pavers, that is, like for like. If there is no agreement as to the choice of contractor, the cheapest quote is to be selected. Any additional works beyond the wall and the section of stairs are to be separately itemised and quoted and to be paid for by the relevant party. The applicants are to engage and pay for the nominated contractor.

4. The works in (2) are to be completed within 120 days of the date of these orders otherwise order (5) lapses.

5. Within 21 days of the receipt of a tax invoice for the completed works, the respondents are to reimburse the applicants 90% of the agreed cost of the stairs and 60% of the agreed cost of the wall.

6. The parties are to provide all reasonable access on reasonable notice for the purpose of quoting and the construction of the works in (2).

7. The exhibits except A are returned.

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 13 April 2017