Wong v Neue and Neue-Bartocha

[2008] NSWLEC 1122

Land and Environment Court

of New South Wales

CITATION:	Wong and Anor v Neue and Neue-Bartocha [2008] NSWLEC 1122
PARTIES:	APPLICANT Ho Shing Wong and Dason Wong RESPONDENT Gunter Neue and Helga Neue-Bartocha
FILE NUMBER(S):	20014 of 2008
CORAM:	Fakes AC
KEY ISSUES:	Neighbour Application - Trees (Neighbours) :- removal of the two trees and compensation for removing and replacing a retaining wall at the rear of their property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	14/03/2008
EX TEMPORE JUDGMENT DATE:	14 March 2008
LEGAL REPRESENTATIVES:	APPLICANT Ho Shing and Dason Wong, litigants in person RESPONDENT Gunter Neue and Helga Neue-Bartocha, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

14 March 2008

20014 of 2008 Ho Shing and Dason Wong v Gunter Neue and Helga Neue-Bartocha

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Ho Shing Wong and his son Dason Wong of 12 Vickery Avenue Carlingford concerning two Cinnamomum camphora (Camphor Laurel) trees at the rear of the property owned by Mr & Mrs Neue of 72 Bradley Drive Carlingford.

2 The respondents were assisted by Mr Donald Martin, a structural engineer. Mr Ho Shing Wong, who is not fluent in English was assisted by his son, Dason Wong, who translated most of the questions and answers.

3 The applicants are seeking the removal of the two trees and compensation for removing and replacing a retaining wall at the rear of their property. The applicants contend that the roots from the two trees are causing the retaining wall to crack and lean. The retaining wall is located to the north and east of a swimming pool.

4 The trees were viewed from both properties. The trees are two Camphor Laurels to the north of the applicants’ property. The largest of the two is approximately 10 m high and is located within 100 mm of the boundary fence between the two properties. It is displaying signs of dieback and thinning on the southern or Vickery Avenue side. The respondents state that this decline started about 2 years ago. The other tree is approximately 8 m high and much smaller in diameter. It is located about 600 mm from the boundary fence. The applicant has removed some overhanging branches from both trees.

5 According to the respondents, the previous owner of 12 Vickery Avenue built the colourbond fence in excess of 15 years ago. This was done without the knowledge or consent of the respondents and the fence was built around the tree as it was on the boundary of the two properties.

6 Under s 4 (3) of the Act, the Act only applies if the tree is situated wholly or principally on the land. This must also be considered under s 12(a). With some assistance from Mr Martin, I am satisfied that, despite the deviation in the fence around the tree, the tree is substantially on the respondents’ land.

7 The trees and the retaining wall were then viewed from the applicants’ property. The applicant purchased the property about 12 years ago and the pool and retaining walls were there.

8 The retaining walls in question are a double brick wall of approximately 1.02 m high that surrounds the pool on the northern and eastern sides. Above the brick wall, separated by less than a 100 mm set back, is a split sandstone wall in a “crazy” pattern with oxided mortar joints and of approximately 600 mm in height. The top of the sandstone wall is about 1 m from the boundary fence on the northern side. The distance between the top of the paving around the pool to the ground level where the trees are growing is therefore greater than 1.6 m. There are no weep holes in either the brick wall or the sandstone wall. The soil is a clay loam/ clay.

9 There are cracks in the mortar between the sandstone in most parts of that wall. There are cracks between the bricks and cracking and fretting of the bricks in the lower part of the brick wall in the vicinity of the two trees. The northern section of the retaining wall is displaced off vertical by approximately 50 mm; the eastern section is displaced by about 25-30 mm. This was determined by a spirit level provided by Mr Martin. There was also a gap of about 10 mm between the second and third course of bricks from the top of the wall in the north-eastern corner of the brick wall. The applicants contend that the roots of the trees are causing the walls to lean and crack.

10 The method of constructing such a brick retaining wall was discussed on site. Mr Martin said that the common practice for many years has been to step the brickwork down to create a footing much wider than the top section of the wall. He stated that a double brick wall should normally only retain a depth of 600 mm of soil; any deeper and the footings/ lower section of the wall should be wider.

11 Mr Martin used a steel rod to probe behind the brick wall. No evidence of additional brickwork was found. The soil behind the sandstone section was also probed to beyond 600 mm in depth and no evidence of any foundation was found. This was done because Mr Wong stated that when he replanted that section behind the sandstone wall he said he found a concrete wall and tree roots.

12 Mr Martin stated that in his experience, the most likely cause of displacement and cracking of retaining walls is soil pressure with additional pressure of water.

13 The original site sloped from the north-east to the south-west and therefore the installation of the swimming pool in the north-eastern corner of 12 Vickery Avenue resulted in the substantial lowering of the land in that section. The soils in this part of Sydney are slightly reactive clays. Mr Martin stated that Sydney has had years of drought which has been followed in recent months by above-average rainfall. This results in the shrinking and swelling of the soil.

14 The absence of weep holes in the retaining walls raised the question of whether adequate drainage had been installed behind the walls. To this end, two drainage pits were inspected. One of them revealed a 40 mm diameter agricultural drainage pipe that may lead behind the wall. This appeared to be somewhat inadequate for the purpose if indeed it was installed behind the wall.

15 Mr Martin concluded that the wall was inadequately designed and constructed and may have been built after the pool by someone else due to the absence of expansion / control joints between the pool paving and the wall.

16 The applicants questioned why there was more displacement in the northern section of the wall compared to the eastern section as they remained convinced that the trees were the cause of the problem. An inspection over the fence between 12 Vickery Avenue and the property on the eastern side showed an extensive driveway with a curb between the driveway and the applicants’ fence. This would limit the infiltration of water into the soil and deflect any run-off away from the applicants’ property.

17 There are a number of issues under s 12 of the Act that are relevant in this matter. Clause (h)(i) refers to anything other than the trees that has contributed to the damage. In this case the inadequate construction of the wall for the nature and volume of soil it is retaining and the absence of weep holes are significant. Another component of this clause is any act or omission by the applicant. When questioned, the applicant first became aware of the problem with the retaining wall about 6 years ago but, according to his son, due to pressures of running his business, he did nothing about the wall and has done nothing since.

18 The respondents were first notified by Mr Wong snr in September 2007 when Mr Wong visited them and requested that they remove the trees due to the damage they were causing to the walls. The respondents did not want to remove the trees as they value the leafiness of their garden.

19 The respondents viewed the wall and noted the absence of weep holes. After receiving notice of this application under the Act, the respondents engaged Mr Martin to carry out an inspection of the wall.

20 They also contacted Baulkham Hills Shire Council to see if any records of the construction of the pool and the wall were on record. Baulkham Hills Shire Council replied and stated that a search of the records concerning 12 Vickery Avenue found nothing pertaining to the wall. When the previous owners of 12 Vickery Avenue constructed the wall and pool, the respondents were not notified.

21 Under s 10(2) of the Act, the Court must be satisfied that the trees have caused, are causing, or could in the near future, cause damage to property or injury to persons. In the case of Yang v Scerri [2007] NSWLEC 592, the near future is deemed to be within the next 12 months.

22 After viewing the site and hearing the evidence that being the type of soil, the age and construction of the retaining walls, the absence of any roots in cracks or gaps between the bricks and sandstone, the absence of weep holes and the lack of evidence of footings, the application to remove the trees is refused.

23 In the matter of the compensation of between $9,800.00 and $14,950.00 (from 2 quotes) to demolish the existing wall and rebuild it to current standards, this is also refused. The applicant has known about this problem for six years and has done nothing about it including engaging his own structural engineer. The applicants were also unable to demonstrate that the damage has been caused by the trees.

24 The orders of the Court are that the application is refused.

___________________
J Fakes
Acting Commissioner of the Court
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