Wei v Borello

[2016] NSWLEC 1003

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wei v Borello & ors [2016] NSWLEC 1003
Hearing dates:	24 November 2015
Date of orders:	05 January 2016
Decision date:	05 January 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury; nexus not found between trees and damage; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Quing Wei (Applicant) Domenico Borello (First Respondent) Francesca Borello (Second Respondent) Rocco Borello (Third Respondent) Gracell Gallo (nee Borello) (Fourth Respondent)
Representation:	Quing Wei, litigant in person (Applicant) Mr S Nasti, solicitor (Respondents)
File Number(s):	20816 of 2015

Judgment

Background

1. Mrs Wei (‘the applicant’) has owned her property in Fairfield since 1994. She runs a childcare centre on the property. Around 1995 she had brick walls constructed around the boundaries: there is a wall along the side boundary next to a side street; there are walls along the common boundaries with properties to her south and east.

2. Members of the Borello family (‘the respondents’) have owned the property to her south since 1999. On their property near their common boundary with Mrs Wei’s property are two trees: a fig tree and a murraya. Both trees are approximately one metre from the boundary and their canopies overhang the brick wall. The brick wall is approximately 2.5 metres tall near the trees.

3. Mrs Wei became concerned about the trees some years ago. She is concerned that they overhang her property and that berries from the trees might be eaten by children in her care, and that their branches scratch the arms and faces of children in her care. She also noticed some years ago a crack in the brick wall in the vicinity of the fig tree. Over time the crack became more severe and Mrs Wei says she approached her neighbours to ask them to do something about this. She also asked them to do something about the overhanging branches, because the person she had engaged for some years to trim overhanging branches said the job was now too big for him. Unable to reach a resolution with the respondents about either the branches or the wall, Mrs Wei has applied to the Land and Environment Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of both trees, compensation and repair to the wall.

4. Fairfield Council (‘Council’) was contacted about the condition of the wall some time ago. After a Council officer inspected the fence, Council placed an order stating that both property owners must install protective fencing in their properties at a distance no closer to the wall than the wall’s height to prevent people entering the zone in which they might be injured should the wall fall. Clearly Council is of the view that the wall is a safety issue. Both property owners have erected such fencing. The Council order says that the fencing must stay in place until a structural engineer deems the wall to be safe.

5. Details of the compensation Mrs Wei seeks were contradictory in various sections of her application, so at the onsite hearing she explained exactly what compensation she seeks:

• Compensation for the cost of trimming the trees for the last seven years.

• Compensation for temporary repair works carried out to the wall.

• Compensation for an extra staff member required in the childcare centre during periods when she has been occupied with preparing her application.

• Compensation for $52,000 for lost earnings she says are due to a family with three children deciding not to use the centre when they saw the condition of the wall.

• Compensation for fixing the ground in the playground area of her childcare centre, which she says is uneven due to root growth.

• Compensation of an unknown amount for the cost of repairing or replacing the wall.

6. Mr Nasti, acting for the respondents, filed a subpoena for Council to provide any relevant documents for the property. Of particular interest to the respondents was information regarding ground levels within Mrs Wei’s property and any construction requirements for the brick wall along the boundary.

7. Mrs Wei has provided no expert evidence regarding the wall, the trees or any damage. The respondents have provided an arborist’s report and an engineer’s report. Despite being commissioned specifically to assist this hearing, the arborist report does not comply with the directions for expert evidence provided to the parties. Mr Holden, arborist, has not acknowledge in his report that he has “read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005” (Direction 14). Mr Russo, engineer, has complied with the Court’s directions. Mr Russo attended the hearing to provide evidence and to assist the Court to reach a conclusion regarding the wall.

The framework of the Trees Act

8. The Trees Act (at s (7)) enables an owner of land to “…apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.”

9. The Court can make orders “…as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned” (s 9(1)) if it is satisfied that:

• The applicant has made a reasonable effort to reach agreement with the respondent (s10(1)(a)); and

• the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person (s 10(2)).

10. The Court is not required to make the orders sought by the applicant, but can make orders as it sees fit after considering a range of discretionary matters listed at s 12 of the Trees Act.

11. The onsite hearing allowed observations of the trees, the wall, other walls on Mrs Wei’s boundary and other relevant features that the parties wished to indicate.

Access to subpoenaed documents

12. The first issue to resolve was if material provided by Council could be used by the parties as evidence. The material only arrived at Court the day before the hearing. Mr Nasti had not attended an earlier hearing at the Court regarding access to material so no orders for access had been made. I granted leave for general access to the material to both parties. Mr Nasti argued that the material should be used as evidence as it was relevant to the construction of the wall and to other features of Mrs Wei’s land. Mrs Wei argued that the documents should not be used as she did not have sufficient time to review the information. She said her understanding of the English language, though generally good, was limited in the technical field of the documents.

13. Conditions of the wall and its construction type could easily be observed at the hearing. Mr Russo was able to give evidence about the design and construction of the wall. There was very little additional information within Council’s documents that would assist the Court. For reasons that should become obvious below the documents would not make any material difference to the outcome in this decision.

Elements of the claim

14. The issues are dealt with below, beginning with the simplest.

Overhanging branches

15. Regarding Mrs Wei’s claim that overhanging branches have cost her money to trim, I find there is nothing to demonstrate that branches have caused or are likely to cause damage or injury. Mrs Wei submitted photos of children with scratches on their arms and faces, but there is no evidence that this was caused by tree branches. Even if it was, this was something that was easily avoidable by pruning branches that were low enough for small children to make contact with. Mrs Wei says she has been trimming the trees, in which case there is no reason why children should have been injured by branches. It is not uncommon for people to have to prune overhanging branches from neighbouring trees. Council planning schemes may or may not require a permit for such pruning, but if they do there is usually a straightforward process to follow before being allowed to carry out pruning.

16. I therefore see no reason to order interference with the trees on the basis that they have overhanging branches, nor to order compensation regarding past trimming of the trees

Berries, spiders and so on

17. Mrs Wei says children may be injured by swallowing berries that fall from the trees, by swooping birds coming from the trees, or by spiders from the trees. Regarding fallen berries, the Court established a principle at (20) in Barker v Kyriakides [2007] NSWLEC 292 that it is reasonable for people in urban environments

…to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

18. I do not find any extraordinary circumstances in this case that would lead me to veer from this principle.

19. At paragraph 189 in Robson v Leischke [2008] NSWLEC 152, Preston CJ found that:

…the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees.

20. The Court has no jurisdiction over spiders or birds that may use the respondent’s trees. As a consequence, no orders will be made to interfere with the trees on the basis of berries, spiders or birds.

Uneven ground surface

21. Mrs Wei says the uneven surface within the playground area of her centre is caused by tree roots. The respondents say there is no evidence of this, as the area is covered by artificial turf and no roots have been shown to be growing beneath this. Furthermore, they say the artificial turf covers an area that was raised with fill over the original soil level, and that this fill may have subsided. This contention is reasonable – there is no dispute that the ground here was built up with fill at the time of construction. Considering that no roots have been shown to be present, I cannot be satisfied to the extent required by the Trees Act that the tree has caused the uneven surface. Even if I am wrong, as His Honour found in Robson at paragraph 166:

…damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006.

22. Therefore no orders will be made for interfering with the trees or for compensation on the basis of any uneven ground surface.

Lost earnings

23. Mrs Wei provided no evidence that she has lost any earnings as claimed. Even if this could be shown, as His Honour explained at paragraph 217 of Robson the Court’s jurisdiction for compensation under the Trees Act is limited to “compensation for damage to property” (s 9(2)(i)) and does not include compensation for lost earnings. This is not a matter for which I could order compensation even if I found Mrs Wei had suffered such a loss.

24. For the same reason the Court cannot make an order for compensating Mrs Wei for the cost of employing extra staff – this is not damage caused by the trees.

The wall

25. The brick wall along the common boundary was constructed in or about 1995. The land slopes down to the east but the top of the wall is level so that, using the ground within the respondents’ property as a reference, at its western end the wall is approximately 1.7 metres tall and at its eastern end it is approximately 2.8 metres tall. It is a single-skin brick wall. At regular intervals of a few metres along the wall there are piers, but each pier is a single column of bricks placed against the wall without any apparent interlocking of bricks with bricks in the wall and apparently without any ties fixing the wall to the piers. On my understanding these are not engaged piers. Mr Russo confirmed this to be the case.

26. To the east of the fig tree, perhaps two metres from the base of the tree, there is a large diagonal crack in the brick wall, beginning at the top of the wall closer to the tree, spreading downwards to the east through bricks and mortar. The crack follows mortar in places but also includes cracked bricks. It is widest at its top and narrowest at the base of the wall.

27. Mrs Wei contends that the pattern of cracking, with the crack widest at the top of the wall, is consistent with damage caused by a force onto the footing from below, such as might occur with root growth. She has not obtained an expert opinion on this matter but bases her contention on material she has read on the internet.

28. Mr Russo is of the opinion that the pattern of cracking is consistent with damage caused by part of the wall dropping. He says that, in his opinion, the eastern end of the wall has dropped as a result of soil swelling and shrinkage causing the foundation to drop.

29. It seems to me that the easiest way to discover which of these theories is most likely the cause of damage would be to take level readings along the top of the wall. This should demonstrate whether the wall has been pushed up in the vicinity of the tree or has dropped at its eastern end. It is somewhat surprising that neither party has undertaken this simple exercise.

30. Nevertheless, my own observations along rows of mortar indicated that the two or three easternmost pillars were indeed gradually lower than the remaining section of wall to the west, which appeared level. For this reason I find Mr Russo’s contention the more likely of the two.

31. Roots are visible close to the wall east of the fig tree, in the vicinity of the crack. It can be seen that they are attached to the fig tree, as they cross the ground at its surface. However there is no evidence that these roots pass beneath the wall’s footing or that they have caused any damage. While it is possible that these roots have contributed to damage, I need to be satisfied of this, especially as I accept Mr Russo’s opinion that the primary cause of cracking is the footing dropping further to the east.

32. The Trees Act only requires that the tree is a cause of damage – it need not be the primary cause. Given the lack of evidence connecting the tree to the crack in the wall, I cannot be satisfied that this is the case.

33. The wall is cracked elsewhere, well away from the trees, albeit with different patterns of cracking. Other cracks appear to be smaller and run more horizontally. Other walls around Mrs Wei’s property have similar cracking.

34. On the findings above I cannot be satisfied that there is a nexus between the trees and the damaged wall, and so I cannot make orders to remove the trees, for compensation regarding works to the wall, nor for repairing or replacing the wall. Even if such a nexus was demonstrated I find that the construction of the wall was inadequate for its height and for the site conditions. Mr Russo stated that a wall of 2.7 metres height would need to be of a sturdier construction, with properly engaged piers. No part of the wall along the boundary is designed to retain the soil that is approximately one metre deep on the applicant’s land. Mr Russo stated that the wall’s footing is inadequate, and that there are insufficient articulation joints along the wall. I accept this to be the case.

35. According to both parties, to Mr Russo and to Fairfield Council, the wall is unsafe and requires repair. However on my findings this is not a matter that falls within the Court’s jurisdiction and the application will be dismissed. It is hoped that the parties can find another way to quickly and efficiently resolve this issue.

Orders

36. As a result of the foregoing, the Court orders that:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 05 January 2016