Land and Environment Court New South Wales

• Medium Neutral Citation: Lee & anor v Waugh [2012] NSWLEC 1341
• Hearing dates: 30 November 2012
• Decision date: 12 December 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

The application is upheld in part; removal ordered; compensation ordered

• Catchwords: TREES [NEIGHBOURS]: Damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Ghazal v Vella (No. 2) [2011] NSWLEC 1340; Barker v Kryiakides [2007] NSWLEC 292
• Category: Principal judgment
• Parties: W & K Lee (Applicants); E Waugh (Respondent)
• Representation: Applicants: Mr W and Mrs K Lee (Litigants in person); Ms E Waugh (Litigant in person)
• File Number(s): 20887 of 2012

Judgment

1 COMMISSIONER: This is an application made under s 7 of the Trees (Disputes Between Neighbours) Act 2006 by the owners of a property in South Coogee against the owner of a Norfolk Island Pine growing on an adjoining property.

2 The applicants contend that the roots of the Norfolk Island Pine have caused the cracking of the masonry wall that divides the two properties. The applicants are also concerned that the branchlets that fall from the tree could block the gutters of their house and their pool filter. The applicants are also worried that the entire tree could fall onto their property and cause extensive damage and potential injury.

3 The applicants are seeking orders for the removal of the tree and the reconstruction of the wall at the respondent's expense. In order to repair the wall they say that the stump of a palm tree will also have to be removed.

4 The respondent does not wish to remove the tree, as she values the tree and is concerned that the soil in her garden will be destabilised.

5 The respondent has resided in her dwelling since 1939. Photographs taken in the 1940s show the early stages of the back garden and attempts by the respondent's mother to stabilise the sloping sandy site with pieces of sandstone. The tree is a healthy mature Norfolk Island Pine. The respondent thinks it was planted in the 1950s as a thankyou present from a student who boarded in the house. The tree is close to the common boundary and planted approximately mid way along the rear common boundary.

6 Apart from the Pine, there is the stump of a palm that was removed some years ago. The stump is close to the northern end of the wall. There are a number of shrubs in the garden bed along the wall as well as the stumps of previously removed trees.

7 The applicants have owned their property for 48 years; they and a builder erected the masonry walls around the rear of their property 41 - 44 years ago. The wall in question was built about 44 years ago. The wall is constructed of a single skin of narrow (400mm long x 190mm high x 100mm thick) concrete blocks. The blocks are not in a bonded pattern but are horizontally and vertically aligned. There is no internal reinforcing, however galvanised wire mesh was placed between each row of blocks. The footing is a strip of concrete '9" wide and 4" thick' laid directly onto the sandy soil. The wall is on average about 5 courses high and capped with two rows of decorative concrete 'breeze' blocks. The north-eastern section of the wall has a kink in it as it evidently follows the line of a former fence.

8 There are a number of vertical and horizontal cracks in the mortar between several vertical and horizontal courses of blocks in the vicinity of the palm stump and the Norfolk Island Pine. There is also separation between some of the decorative breeze blocks on the top of the wall.

9 The applicants' back garden is fully paved and contains a part in-ground part above-ground pool that has been there for decades. There are masonry walls on the western and southern boundaries. Construction of a dwelling at the southern end caused the southern wall and the southern end of the western wall to be undermined. These were rebuilt to current standards. The remaining original section of the original wall is in good order.

10 I also note that the paving in the vicinity of the tree is level and in good order.

11 In applications made under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that 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.

12 While there was no excavation to show the location of roots, with the expertise I bring to the Court, I consider it highly likely that given the size of the tree, the sandy nature of the soil, the shallow depth of the wall's footings, and the proximity of the tree to the wall that there are likely to be structural roots under the footing. In this matter I am satisfied that the Norfolk Island Pine has contributed to the damage to the applicants' eastern boundary wall. As s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 is engaged.

13 With respect to the other matters raised by the applicants in regards to debris and the risk of whole tree failure, I make the following findings.

14 In regards to the stability of the tree, I saw no evidence that the tree is likely to fail in its current condition. The applicants have not sought advice from an independent arborist but instead rely on some comments made by an SES person who inspected the tree on 23 May 2009. The applicants contacted the SES because they were afraid the tree would come down in high winds.

15 The applicants claim that debris falls from the tree onto their roof and into the pool. This necessitates regular maintenance because they say a build up of material could lead to damage to ceilings etc. inside their house as well as damage to the pool liner and filter. I was not shown any evidence of any damage to the house or the pool. I believe the applicants' position to be that such on-going maintenance is unreasonable and that the tree should be removed to prevent future damage.

16 In regards to the debris from the tree, I am not satisfied that any element of s 10(2) is satisfied. However, if I were wrong in my findings, as a matter of discretion I would not make any orders for any intervention with the tree on the basis of debris. The Court has a long standing Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states that:

For people who live in urban environments, it is appropriate 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.

17 There are many examples of the application of this Principle. In this matter I am not satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; I see no exceptional circumstances that would lead me to deviate from this consistently applied principle. The tree was clearly well established when the pool was constructed.

18 Returning to the interaction between the tree and the wall, s 9 of the Act enables the Court to make any order it thinks fit to remedy, restrain or prevent damage to an applicant's property. Determining what orders, if any, are appropriate requires consideration of matters in s 12 of the Act. The relevant matters are discussed below.

Location of the tree (s 12(a))

19 The Norfolk Island Pine is wholly located on the respondent's land and is within 500mm of the applicants' eastern boundary wall. A photograph taken in the 1960s (in exhibit A) shows the Norfolk Island Pine to be well established when the applicants purchased their property. The photograph also shows that there were many other mature trees along the western boundary of the respondent's property. The eastern wall is visible in the photograph.

Other relevant consent (s 12(b))

20 The Norfolk Island Pine is otherwise protected by the Randwick City Council Tree Preservation Order (TPO). I note that the parties seem to have approached council many years ago in regards to removing the palm and or the Norfolk Island Pine. The advice seems to be that the trees could not be removed but could be pruned.

21 In June 2010 the applicants applied to Council for removal of both the palm and the Norfolk Island Pine. Ms Waugh's signature does not appear on the section of the application requiring 'owner's consent' but her written evidence suggests that she was approached by the applicants to sign the application. The council subsequently approved the application to remove both trees on the basis of 'dead/dying/diseased/dangerous'; 'causing structural/property damage'; 'inappropriate location/ species'. According to the evidence before me, Ms Waugh was not present when the council officer inspected the trees. Council wrote to both parties advising them of the decision. Ms Waugh had the palm removed but not the Norfolk Island Pine.

22 While a council may give permission for a tree owner to remove a tree, there is no obligation for the tree owner to carry out the work. Similarly, if approval has been given to a tree owner to remove a tree, that approval stands (depending on the time limit of the approval) regardless of orders the Court may make. An order of the Court not requiring the removal of a tree does not prevent the owner of the tree applying to the council. However, as the matter is now before the Court, the view of the council is not determinative but simply a matter for consideration. The roles of councils and the Court in determining tree matters are discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340.

Likely impact of pruning (s 12b2))

23 While the applicants raise concerns over the falling of debris I have determined that no orders of the Court should be made in regards to the branches. The issue is whether the wall could be rebuilt without pruning the roots. The replacement of the wall with a conventional strip footing to current standards would necessitate the pruning of a significant portion of the tree's structural roots. This would compromise the stability of the tree and necessitate the tree's removal. It is possible to use pier and beam construction methods that enable the retention of the tree but minimise damage to the roots by bridging them.

Contributions of the tree to private and public amenity (ss 12(b3),(e) and (f))

24 The respondent values the tree for the shade it provides. It contributes to the natural landscape and scenic value of the land on which it is growing. Given its height and location it can be seen from many nearby properties and so contributes to public amenity.

Impact on soil stability (s 12(g))

25 The respondent contends that the roots of the tree, and that of the palm, are important as a means of retaining the sandy soil in her sloping backyard. She fears that the removal of the tree would lead to the down slope movement of soil which in turn may put additional pressure on a retaining wall to the east of her property.

Anything other than the tree that has contributed to the damage and steps taken by the parties (s 12(h))

26 In my view, while the tree is certainly likely to have contributed to the damage, the inadequate nature of the strip footings and the lack of reinforcing are likely to be significant causes. On the applicants' evidence, the footings were only about 100mm thick and put directly onto the sandy soil some 44 years ago.

27 The applicants rely on the good condition of the western wall to support their contention that the respondent's tree is the principal cause of the cracking in the eastern wall. While I accept the tree has been a cause, I find that the surrounding conditions are quite different in respect to both walls.

28 The western wall retains soil and some low growing shrubs above it. The bottom of the wall and the soil behind it are stabilised by the applicants' paved back yard. The respondent's land below the eastern wall is not so retained and in my view, the footing is of insufficient depth to prevent soil movement. Over the 44 years since the wall was erected, it is likely that some natural movement of soil has occurred that may have contributed to the movement of the wall and therefore the cracking. Similarly, the kink in the eastern wall may also be a factor that limits its structural integrity.

29 There is some dispute between the parties as to when the cracks were first noticed and when the respondent was notified about the problem with the wall. The evidence on site was that the cracks were obvious some 12 years ago. A statement in the applicants' evidence suggests that the condition of the wall, amongst other things, was raised with the respondent in 2011. The attachment to the applicants' 2010 application under council's TPO does make a reference to the Norfolk Island Pine lifting the wall; however, most of the 17 points list concerns over debris and include references to the palm which was subsequently removed.

Conclusions and orders

30 After considering the evidence, I am satisfied that the Norfolk Island Pine is a cause of the damage to the wall. However, I also find that the age, construction, and location of the wall have also contributed to its condition. Notwithstanding the causes of the damage, it remains that the wall needs rebuilding.

31 I have carefully considered two options - retention or removal of the tree.

32 If the tree is retained, the wall will have to be rebuilt with 'pier and beam' footings in the vicinity of the tree. This will be a more expensive option and would require an equal contribution from the respondent.

33 In order to locate the best positions for the piered footings, the area between the tree and the wall, for a distance of at least six metres (centred on the centre of the trunk) would need to be carefully excavated by hand or with the use of air or water jetting. Given the sloping nature of the respondent's back garden and the sandy nature of the soil, this may be difficult to achieve. The rest of the footing could be constructed in a more conventional manner.

34 Despite this being a possible option, I have concerns that even with the best intentions to avoid large roots, some roots will inevitably be cut. The roots most at risk are those on the upper or tension side of the tree; these are considered to be the most important roots for tree stability. The tree is located in a relatively exposed location close to the coast. If roots are damaged and the tree fails, the tree is of a size that it would lead to significant damage to property and potentially injury to people.

35 If the tree is retained, it will continue to grow, albeit it more slowly, and future damage might arise.

36 If the tree were to be removed, more conventional strip footings would be required. I agree with the respondent that steps must be taken to stabilise the soil in the respondent's back garden. To this end, the tree need only be reduced to a stump of 1m high and the majority of the roots can remain to break down slowly. However, some root pruning would be required to enable the rebuilding of the wall with footings of sufficient depth to prevent the movement of soil from the applicants' property onto the respondent's land. The stump grinding would be limited to a distance of up to 400mm from the eastern side of the wall for a distance of 4m centred on the centre of the tree to a depth of at least 400 mm.

37 After considering these options, regrettably, I consider that the tree should be removed. As is the usual convention in these matters, the respondent will be responsible for the removal of the tree.

38 During the hearing, in preliminary discussions on possible orders and cost sharing, the applicants agreed to be responsible for the cost of the footings; however, this was on the basis of the tree's removal. I consider this is reasonable in the circumstances.

39 In regards to the reconstruction of the wall and what contribution the respondent should make, I consider that the respondent's contribution will be limited to 80% of the labour and materials costs of laying a maximum of five courses of block work for the length of the eastern wall. In my view this discounting is appropriate given the fact that the cracks have been obvious for at least 12 years and the Trees Act has been in operation for over five years. All other costs including the demolition of the wall, any reinforcing, and any other courses of block work are to be at the applicants' expense. It is the responsibility of the applicants to ensure that the replacement wall complies with any relevant council or other legislative controls.

40 No orders will be made in regards to the palm, as any roots should be relatively easy to remove by hand when the footings are excavated.

41 Therefore, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 90 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the tree and grind the roots in accordance with the details in paragraph [36] of this judgment.

(3) All tree work must be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The applicants must provide all necessary access for the work to be carried out safely and efficiently on reasonable notice (usually two working days).

(5) Within 90 days of the date of these orders, the applicants are to obtain at least three quotes for the rebuilding of the eastern masonry wall. The quotes are to be itemised to clearly show the labour and materials costs (blocks and mortar) for the laying of 5 courses of block work for which the respondent is to contribute. All other costs including demolition, footings, reinforcing etc are to be separately itemised. Should the respondent wish, she can obtain up to two quotes for the work. The parties are to exchange quotes and agree on the cheapest.

(6) The respondent is to allow access to her property for the purpose of quoting and for carrying out the work on reasonable notice. If the respondent chooses to obtain quotes the applicants are to allow access for the purpose of quoting.

(7) The applicants are to engage and pay for the nominated contractor. The wall is to be rebuilt by 31 May 2013 otherwise order 8 lapses.

(8) Within 21 days of the receipt of a tax invoice for the completed work, the respondent is to reimburse the applicants 80% of the cost of labour and materials (blocks and mortar) for the laying of five courses of block work for the length of the eastern wall.

(9) If the wall is not rebuilt by 31 May 2013, the applicants are to reimburse the respondent the cost of the removal of the tree within 21 days of the receipt of a tax invoice for the work.

____________________________

J Fakes

Commissioner of the Court

Decision last updated: 13 December 2012