Urquhart v Hayman

[2010] NSWLEC 1248

Land and Environment Court

of New South Wales

CITATION:	Urquhart v Hayman [2010] NSWLEC 1248
PARTIES:	APPLICANT T Urquhart RESPONDENT J Hayman
FILE NUMBER(S):	20366 of 2010
CORAM:	Moore SC - Galwey AC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Hinde v Anderson and anor [2009] NSWLEC 1148
DATES OF HEARING:	20 August 2010
DATE OF JUDGMENT:	7 September 2010
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr C Blackwell, solicitor Kreisson Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
GALWEY AC

7 September 2010

10/20366 Urquhart v Hayman

JUDGMENT

1 COMMISSIONERS: This is an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning the impact of two Canary Island Date Palms (Phoenix canariensis) (the trees) on a wall between two properties in the Sydney suburb of Glebe. The two properties are of the comparatively narrow fronted terrace style and have small rear yards with rear lane access. The two trees are growing in close proximity to each other and have intertwined root balls that have raised the trunks of the trees approximately 600 mm or so above natural ground level. The trunks of the trees are in close proximity to the boundary of the property to the east that being a property owned by the applicant.

2 In 2004 and early 2005, as part of extensive renovations to the applicant’s property, a new brick wall was erected (on a strip footing) to divide the applicant’s property from the respondent’s property. The strip footing was constructed to the boundary but the wall is located, with the exception of a number of engaged piers, some 100 mm or so within the applicant’s property. The engaged piers, towards the rear or southern boundary, are located to the boundary - that is on the outer side of the wall. The engineering plans, however, show the engaged piers as being constructed on the eastern side - that is the inner face to the applicant’s property - of this wall.

3 During the course of the construction of the wall, the root ball of the palm trees was pruned to the boundary. This pruning has not adversely effected the palm trees and, on our collective knowledge of such trees, should not be expected to have done so (because of the extremely large number of small roots and the ability of such trees to survive extensive pruning of this nature during, for example, transplantation of even significantly sized specimens).

4 The two trees are some 7 m or so in height with their fronds overhanging the applicant’s property. The trees appeared to be healthy despite the root pruning that has occurred (as discussed below). The trees appear to be well maintained and there were no dead fronds hanging from them.

5 The application is made on two separate bases. The first is that the root ball of the trees has caused actual damage to a brick wall located entirely within the applicant’s property (which wall forms the dividing structure between the rear yard areas of the two properties). The second basis upon which the application is made is that there is a risk of injury to persons in the rear yard of the applicant’s property as that would be occasioned by falling fronds from or complete failure of the trees.

6 No application has been made under Part 2A of the Act suggesting that either or both of the palm trees are causing a severe interruption to sunlight to any window in the applicant’s property.

7 It is clear from the photographic evidence that, at the time the footing was excavated and the wall was constructed, the root ball was pruned at least to the boundary between the two properties. It is also clear from the engineering evidence presented by the respondent (as well as from the visual evidence from our site inspection) that the root ball has regrown to and across the boundary between the properties to exert pressure on the wall. The engineering evidence and our site inspection also showed the cracking of the wall that will continue to be exacerbated if the pressure from the roots of the trees is not removed.

8 Although Mr. Blackwell, solicitor for the respondent, endeavoured to persuade us that the wall had not been constructed in accordance with the engineering drawings (and was, thus, at least in part, if not in entirety, responsible for the damage as a consequence of the inadequate construction), we are not persuaded that this is the case. We have, in evidence, photocopies of the plans for the applicant’s renovation - including the structural engineering plans. Although, as earlier noted, the engaged piers for the southern element of the wall are located on the opposite side of the wall to that depicted on the plans, we do not consider that this can found a submission that the wall is structurally inadequate. However, as will be discussed later, this is a matter to be taken into account in the orders that we have made as a consequence of our conclusions.

9 We are satisfied that the wall is adequate as we have the uncontradicted structural inspection certificates that were issued during and after the construction process. In addition, although Mr. Blackwell submitted that the plans showed a double skin brick wall, and thus a wall 200 mm thick to full height, a correct reading of the plans shows a lower portion of the wall constructed to that thickness with the upper portion being of single brick thickness. The actual construction of the wall, as able to be viewed by us, was not inconsistent with compliance with the plans in this regard.

10 As a consequence, in considering the first of the jurisdictional tests that arise under s 10(2)(a) of the Act, it is clear that the root ball of the trees, having been pruned at least to the boundary, prior to the construction of the wall, has caused damage to the wall – being the applicant’s property. For that reason our jurisdiction is engaged.

11 With respect to the second element of the application, that the trees are likely to cause injury to persons in the applicant’s rear yard, a matter raised pursuant to s 10(2)(b) of the Act, as earlier observed, the trees are in good health and appeared to be well maintained. There were no dead fronds hanging from the trees and there appeared to be no possibility of structural failure as a consequence of the root pruning that has taken place in the past. We are not satisfied, for these reasons, that the second of these jurisdictional tests is met. We also note that, even if further root pruning to take place as we envisage, this will not impact the stability of the trees and, as a consequence, we would not alter our conclusion on this point.

12 We now turn to consider the matters that are raised by s 12 of the Act - being matters to be taken into account in considering what orders, if any, we should make with respect to the trees. The trees are significantly mature specimens that have lived in their environment for a long period of time – perhaps as long as 60 years. From an air photo that is in evidence, they make a modest collective contribution to the greenery in the vicinity in what is a densely settled inner urban area. The owner of the trees does not wish to have them removed. Although the applicant seeks their removal, one of the bases upon which he does so lacks, in our assessment, jurisdictional foundation for such an order.

13 Having said that, however, it is not reasonable to require retention of the trees unless we are able to be satisfied that the damage to the wall could be rectified; the trees retained; and future damage to the wall avoided.

14 In this instance, it is perfectly clear that, had the root ball of the two palm trees been pruned to the boundary, on a regular basis, and had the applicant's wall been constructed at the location where it is presently located but with the engaged piers on the applicant's side of the wall rather than on the respondent’s, as was proposed by the approved plans, damage to the wall would not have been occasioned. As the respondent had not taken any steps, on the evidence available to us, to prune the root ball on a regular basis, the inevitable consequence was, we accept, that the damage that has been caused to the wall would be so caused.

15 The applicant’s renovation plans also underwent modification pursuant to s 96 of the Environmental Planning and Assessment Act 1979. This modification process had the effect, amongst other things, of removing a proposed structure over the carparking area at the rear of the applicant’s property. The original plans showed a structure supported by the built elements of the wall spanning from the eastern to western edges of the rear of the applicant’s property providing a car parking space accessed from the rear lane. Although the car parking space has been provided, it is entirely uncovered by any roofing or other structure. Mr. Blackwell submitted that we should conclude that the deletion of the roofing structure lessened to the ability of the wall to resist pressure from the root ball of the trees.

16 Although this may be the case, a matter about which we have no evidence, whether or not that is the case is irrelevant in these proceedings.

17 This position obtains because of a combination of the fact that the applicant’s engineering evidence, including the inspection certificates, demonstrate that the wall is constructed as required for the purpose for which it is intended - namely as a boundary fence between properties and, on the other hand, the fact that the respondent has no right to permit the roots of her trees to intrude onto the applicant’s property in a fashion that causes damage to this otherwise properly constructed wall.

18 As a consequence, we have concluded that it is appropriate to make orders that will require the present and future pressure problems caused by the trees’ root balls to be removed by root pruning - both immediately in order to permit reconstruction of the wall (but in the fashion we have determined as being appropriate and in compliance with the engaged pier design originally proposed) together with requiring the respondent to meet the costs of the reconstruction of the wall but making allowance for the respondent’s financial circumstances and thus allowing a period of time within which reimbursement is to take place.

19 The applicant has provided us with a quotation for demolition and reconstruction of the wall. The quotation is for the sum of $25,135 inclusive of GST. There is no evidence from the respondent providing any alternative to this estimated cost.

20 However, to permit any pruning of the root ball of the trees, in the immediate future, and thus to permit reconstruction of the wall (and space for ongoing maintenance root pruning), because of the location of one of the engaged piers that has been constructed on the western side of the existing wall between the two properties rather than on the eastern side as required by the plans, the wall will need to be demolished prior to the required root pruning (ordered below) being undertaken. To guard against the eventuality that the respondent may not undertake the required root pruning to facilitate the reconstruction of the wall in the form we have determined, within a reasonable period of time, we propose to reserve the right for the applicant to re-approach the Court for further orders concerning the trees if necessary.

21 Equally, although we envisage that the immediate and on-going root pruning regime we are ordering will remove the likelihood of future damage to a reconstructed wall if it is reconstructed at the location and in the form provided for in the orders below, it is also clear that, should circumstances change, a further application can be made under the Act in light of those changed circumstances (as discussed in Hinde v Anderson and anor [2009] NSWLEC 1148).

22 If the wall were to be reconstructed, after the root balls were pruned to the boundary, at the present location of the main body of the wall - that is 100 mm to the east of the boundary between the properties - and the engaged piers were to be located to the east of the wall as shown in the original approved drawings, there would be a 100 mm clear space to the wall, without any obstruction as presently exists from the engaged piers to the west of the wall, resulting in the respondent having an ongoing space of 100 mm within which to maintain the root ball of the trees to be pruned to the boundary. Such a reconstructed wall, when coupled with a requirement for regular ongoing root pruning to the boundary, in our view, provides a satisfactory basis for orders pursuant to s 9 of the Act to remedy the present damage and to provide a reasonable basis for avoiding further future damage to a reconstructed wall.

23 During the course of his closing submissions, Mr. Blackwell was asked to indicate the time period that would be necessary for the respondent to meet any obligation that might be imposed for any reimbursement by the applicant of any reconstruction works that might be required (if such reimbursement were to be determined by us to be appropriate).

24 In response, Mr. Blackwell indicated, without objection from the applicant, that the respondent was unemployed and had limited financial resources. She does, however, obviously, as was accepted by Mr. Blackwell, have a significant capital asset in her property. However, in light of this uncontested and un-objected to submission concerning her financial capacity, we do consider it appropriate to allow a longer then ordinarily would have been allowed time for reimbursement of the costs of reconstruction that we consider is appropriate and such a longer period of time has been provided for by us in the orders in these proceedings.

25 However, to provide certainty to both parties to these proceedings, the orders set out below provide a timetable within which the various steps are required to be undertaken. In the event that the respondent does not meet her obligations pursuant to order number two, the orders provide for the applicant to have liberty to re-list the matter for further consideration of alternative orders, including further consideration of whether orders ought be made for removal to the trees; if the applicant does not meet the deadlines provided in orders numbers three and five, all remaining obligations on the respondent will be discharged.

26 The orders of the Court, therefore, are:

1. The applicant is to demolish that portion of the dividing wall (located to the south of the main structure of the applicant’s dwelling) between the applicant’s property and the respondent’s property that the applicant proposes to replace as a consequence of these proceedings;
2. The applicant is to carry out the demolition in (1) by 5 p.m. on Friday, 23 October 2010;
3. If the applicant fails to carry out the demolition in (1) within the time limit provided by (2), the remaining orders lapse;
4. If the applicant carries out the demolition required by (1) within the time required by (2), the applicant is to serve, by registered mail, notice on the respondent of compliance with those directions and certifying the date upon which the demolition was completed;
5. Within 10 working days of receipt of notice pursuant to (4), the respondent is to prune, to the boundary between the respondent’s property and the applicant’s property, the root ball of the two Canary Island Date Palms (Phoenix canariensis) (the trees) located on the respondent’s properly that are the subject of this application;
6. If the respondent carries out the root pruning required by (5) within the time required, the respondent is to serve, by registered mail, notice on the applicant of compliance with that direction and certifying the date upon which the root pruning was completed;
7. If the respondent fails to undertake the root pruning in accordance with (5), the applicant has leave to approach the Court to seek further orders concerning the trees;
8. Within 60 days of the applicant receiving notification pursuant to (6) of the completion of root pruning pursuant to (5), the applicant is to have the dividing wall reconstructed with the western face of the wall to be located 100 mm to the east of the boundary between the applicant’s property and the respondent’s property and with the engaged piers - as specified in engineering drawing S2A of 2 by Tinslay Consulting Engineers, dated May 2004 - located to the east of the wall as specified in that drawing;
9. If the applicant complies with the time and design requirements of (8), the respondent is to pay to the applicant, to a maximum of $25,135 (being the quoted amount from Bell Building – including GST), the cost of reconstruction of the wall;
10. If the applicant fails to comply with either the time or design requirements of (8), any obligation on the respondent to reimburse the applicant pursuant to (9) lapses;
11. The requirement to pay pursuant to (9) arises only upon service on the respondent of a receipted account for completion of the reconstruction works in (8) and only if such receipted account is served on the respondent within 28 days of the expiry of the maximum effective time permitted by (1) to (8);
12. If a receipted account for reconstruction of the wall is not served as required by (11), any obligation of the respondent to reimburse the applicant for the cost of reconstruction of the wall lapses;
13. If the applicant serves the respondent with a receipted account for reconstruction of the wall within the time specified by (11), the respondent is to reimburse the applicant the receipted cost of reconstruction, to a maximum of $25,135, within 180 days of the date of service of such account on the respondent;
14. The respondent is to have the roots of the trees pruned to the boundary between the applicant’s property and the respondent’s property at intervals of not less than every 12 months from the date of the pruning required by (5);
15. If, within 30 days of the date upon which any annual root pruning pursuant to (14) is required to occur, the respondent has failed to undertake such root pruning, the applicant may approach the Court for consideration of further orders concerning the trees;
16. If the respondent fails to undertake the annual root pruning required by (14) and the applicant fails to approach the Court within 30 days pursuant to (15), any obligation of the respondent to undertake further annual maintenance root pruning lapses;
17. All root pruning of the trees is to be undertaken by an AQF Level 3 arborist with appropriate WorkCover insurances;
18. For the root pruning required by (5), the applicant is required to give access to the applicant’s property, if requested to do so, with such access to be on reasonable notice to the applicant (given care of the applicant’s managing real estate agent as notified in these proceedings) and such access is to be at a reasonable hour of the day and is permitted to be supervised by or on behalf of the applicant; and
19. With respect to the ongoing maintenance root pruning obligation arising from (14), the respondent is to notify the applicant, by registered mail to the applicant’s real estate agent as notified in these proceedings (or to any alternative addresses for service of as such notice where notice of such changed address for service has been served on the respondent by the applicant) of the date of each annual carrying out of the ongoing maintenance root pruning required by (14).

Tim Moore David Galwey
Senior Commissioner Acting Commissioner of the Court