Land and Environment Court New South Wales

• Medium Neutral Citation: Piper v Neal (No.2) [2014] NSWLEC 1038
• Hearing dates: 10 February 2014
• Decision date: 10 February 2014
• Jurisdiction: Class 2
• Before: Moore SC; Fakes C

Decision

(1)The application is dismissed.

(2)The exhibits, other than Exhibits A and B, are returned.

• Catchwords: TREES [NEIGHBOURS] Damage; probable timeframe; causation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & Anor (2009) NSWLEC 1148; Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
• Category: Principal judgment
• Parties: J Piper (Applicant); M Neal (Respondent); Botany Bay City Council (Intervenor)
• Representation: Mr M Steinfeld, solicitor (Applicant); Steinfeld & Associates; Mr L Chan, agent (Respondent); Mr S Shneider, solicitor (Intervenor); Houston Dearn O'Connor
• File Number(s): 20712 of 2013

Judgment

1 COMMISSIONERS: A Liquidambar between about 12m and 14 m high is located in the rear yard of a residence in Pagewood. There has been past pruning of the tree on both its eastern and northern sides, but we are satisfied that, in these proceedings, nothing arises from that past pruning, despite the fact that some of it might be regarded as having been amateurish and not in accordance with the relevant Australian Standard.

2 The tree stands some 600 mm or so to the west of a retaining wall that is located on the applicant's property and which runs the full length of the boundary between the applicant's property and the property upon which the tree is located.

3 The height of the earth retained by the retaining wall tapers from approximately 1.2 m in height toward the northern end at the limit of the section of the wall that is the subject of the application, through to being approximately equal to the ground level on the neighbouring property at the southern end of the wall.

4 The application, as originally proposed, sought orders of the Court that the respondent be required to remove the tree at her expense; that the cost of the replacement of the relevant section of the retaining wall at a cost of some $26,000 be met by the respondent; and that a section of fence, what might only be regarded as a metaphysical fence (as the fence itself has not in fact been present for some ten years), should be reinstated with the cost of that fence being shared between the applicant and the respondent.

5 The final application, arising after a number of matters were raised by us with Mr Steinfeld, solicitor for the applicant, during the course of the proceedings, was that the tree be removed at the respondent's expense: that the relevant section of the retaining wall be replaced with 60% of the cost of that to be met by the respondent: that the work to reinstate the retaining wall be undertaken by the applicant; and that access be permitted to the respondent's property for the purposes of such reconstruction.

6 The claim that concerned the metaphysical fence no longer present was withdrawn.

7 At the commencement of the proceedings, we ascertained that, although the application was made in the name solely of the male resident at the site, the application was made on behalf of both of the owners, even though that was not formalised (save for the papers filed on behalf of Botany Bay City Council (the Council), who have exercised their rights, pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act), to participate in the proceedings. It is appropriate to note that this time that the Council opposes any order being made for the removal of the tree, but does not make any submissions on any of the other substantive matters in dispute between the parties.

8 At the commencement of the on-site hearing, we enquired as to whether there was any evidence demonstrating that, as required as a jurisdictional fact by the legislation, the retaining wall was located wholly or partially on the applicant's property, as no survey had been filed with the supporting documents for the application.

9 After a short adjournment, Mr Steinfeld produced a survey dated 2001, which we permitted to be tendered over the objection of Mr Leon Chan, who appeared by leave as agent for the respondent.

10 In addition to allowing the tender of the survey, we rejected an application for an adjournment to enable the respondent to obtain her own survey, as we were satisfied off the face of the document that it had been undertaken by a registered surveyor and contained the information that was relevant in the proceedings. That survey demonstrated, in effect, that the whole of the retaining wall was located on the applicant's side of the boundary at all relevant locations.

11 It is appropriate to note, at this time, that the applicants have lived in their house since 1971 and have owned it since some time in the 1980s, when the property was gifted to them by the parents of one of the present owners.

12 It was the evidence in the proceedings that the retaining wall had been constructed, shortly prior to the present owners taking up residence in 1971, although there was, given the effluxion of time, no recollection of the methods or nature of construction of the wall - that being an understandable position given that effluxion of time.

13 Mr Peter Chan, a consulting engineer, provided an informal report to the applicants in early 2013, concerning the state of the wall. That report and a proposed retaining wall sectional detail for the reconstruction of the wall, formed part of exhibit B, the material in support of the tree application.

14 There are two things, in our view, to note with respect to that material. The first is that the document says, in para 4, amongst other things:

If the tree were left untended the structural integrity of the masonry retaining wall would be a concern. For long-term solution we recommend that the tree be removed for safety reasons and to avoid the need for more costly future remedial work.

15 The recommendation is for the reconstruction of approximately 13.5 m of the damaged and displaced retaining wall. As we have indicated, there was attached to it a section drawing of a proposed replacement wall.

16 It is clear from both the document and the on-site evidence given by Mr Peter Chan, that the proposed reconstructed wall that he postulated in early 2013 is necessarily predicated on the removal of the tree and that alternative designs, including bridging footings and the like, were not contemplated at that time and there has been no evidence given by him during the course of the hearing on any alternative design of that nature.

17 During the course of his on-site evidence, two critical facts emerged. First, he indicated that, if the wall were not replaced immediately as proposed by the application, it could be up to ten years before there was any likelihood of a significant structural failure of the wall. We note that he did also comment that it was possible that a significant rain event might cause some earlier failure, but that was despite the evidence that we observed during the course of the site inspection on the lower side of the wall that there did in fact appear to be weepholes in the foot of the wall.

18 Second, he also conceded during the course of his evidence that it was likely that some of the bowing and/or rotation of the wall (but not the cracking in the vicinity of the tree) was caused by soil pressures on the applicants' side of the fence. It is as a consequence of that evidence that the apportionment proposed by the applicants in the final orders sought by them was derived.

19 I have earlier noted that the Council opposes the removal of the tree and has filed a statement of Ms Gee, dated 16 December 2000 (as permitted by the earlier directions made by the Assistant Registrar). Ms Gee is a landscape architect.

20 The first page of Annexure B to her statement, which is a copy of an inspection report arising following her inspection of the tree on 16 December 2013, contains commentary about the present state of the retaining wall and the like and the lack of information about the construction standard that was employed in its original erection. She notes, as is well known to us from the hundreds of tree cases that we have heard, that a well designed and built retaining wall is more likely to resist the impact of tree roots than something that may have been constructed many decades ago, whether or not it was constructed to the standards that were considered appropriate at that time or not.

21 Ms Gee observed that the vertical cracking is consistent with tree root damage, but offers some commentary concerning possible other factors that might have influenced the present state of the tree and wall. All of those comments are entirely consistent with the matters that we were able to observe during the course of the site inspection, particularly that the extent of the rotation of the wall appears to be consistent along the length of the wall behind which there is retained earth and that the extent of the displacement toward the southern boundary of the property is to a lesser extent.

22 We observed, during the course of the site inspection, that there is a spear bore into the groundwater at the rear of the property. We were informed that that bore is used for the purposes of garden watering. Mr Peter Chan expressed the view that it was not likely that the cone of depression caused by the bore or that water drawdown from the bore would have any significant impact on the wall and that it would not impact on the pressures that were otherwise effected on the wall. We accept that evidence for the purposes of this decision.

23 We are satisfied, for the purposes of establishing our jurisdiction, pursuant to s 10(2)(a) of the Act, that the tree has at least contributed to the cracking and rotation of part at least of the wall. That conclusion is sufficient for us to be satisfied that we have jurisdiction with respect to both the tree and with a respect to the matters relating to the wall.

24 It is appropriate, at this time, to observe that the tree is an otherwise healthy specimen, despite - as I earlier observed - past pruning that, in some instances, was not in accordance with the Australian Standard. That is a factor that it is appropriate for us to have regard, as a consideration of matters of discretion that arise under the Act, as to whether or not we should make any orders with respect to the tree or with respect to the wall.

25 We also have regard to the fact that Mr Peter Chan has conceded that it is unlikely that there would be a catastrophic failure of the wall for a period of up to ten years and we are certainly satisfied from our inspection, consistent with that view, that it is unlikely - highly unlikely and indeed improbable - that there would be any likely immediate failure of the wall. We are satisfied that the tree itself makes a contribution to the shading of the rear yard of the property upon which it is located and makes a modest contribution to the landscape of the immediate vicinity.

26 We have also had regard to the fact that there is a lack of evidence concerning the footings of and construction standard involved in the erection of the wall more than forty years ago. The fact that the mortar, as observed in Ms Gee's statement of evidence, is currently fretting from it is a modest pointer towards an inadequate construction process.

27 As a consequence, we are not satisfied that, at the present time, there is any basis upon which it would be appropriate to order the removal of the tree and nor is there any basis upon which it is appropriate, at the present time, to order any reinstatement of or reconstruction of any or all of the wall. This is despite the fact that Mr Leon Chan, agent appearing for the respondent in the proceedings, made a submission to us that if we were minded to order any intervention with the tree or replacement of the wall, that the contribution of the respondent should be limited to 10%. We observed that that is a response to the apportionment submission made on behalf on the applicant, rather than as to be taken as an offer of compromise under the circumstances.

28 The second element that was proposed in the application as being a basis for ordering intervention with the tree was what was said to be the suckers emerging from the Liquidambar at six locations on the applicants' property. Of those six locations, four were in the vicinity of the terraced area at the rear of the applicants' dwelling; one was at the commencement of the pathway, running up the side of the applicants' dwelling immediately adjacent to the boundary with the respondent's property; and the final one was at a set of steps immediately adjacent to the north western corner of the dwelling.

29 With respect to the suckers in the four locations in the rear yard, it is clear from para 166 of the decision of Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, that it is necessary for there to be demonstrated damage, even if what was described as suckering, was in fact suckering. There is, in fact for those four locations, no demonstration other than the trees themselves, the small incipient trees that are emerging from the ground, that they have caused any damage to the applicants' property.

30 So, taking the application at its highest and assuming that those trees have been derived from suckers rather than being from self-sown seeds from the Liquidambar, there is nothing consistent with what his Honour said in Robson that would cause us to be satisfied that there was any damage to the applicants' property by them.

31 With respect to the two suckers that are growing at the commencement of the path up the side of the applicants' dwelling, first we observed that there is no evidence whatsoever that they are suckers rather than having been self-sown.

32 Thus, as a jurisdictional matter, we cannot be satisfied that those two small pieces of growth emerging through the path are from the tree and therefore causing the cracking through which they have emerged. Therefore we are not satisfied that on that point there is any jurisdiction with respect to that growth.

33 However, it is possible that we are wrong on that point, so we have taken the applicants' case at its highest on that and assumed that they are suckers growing through the path. The cracking is minor. There is no trip or slip hazard that would engage our jurisdiction under s 10(2)(b) and, despite the fact that it was not pleaded in the application, we are satisfied that to the extent they might be suckers, they are readily able to be removed and that such cracking as might have been caused under those circumstances to the path was de minimis. Even if there was jurisdiction, as a matter of discretion, we would not make any orders with respect to intervention with or the removal of the tree based on those suckers.

34 With respect to a single sucker/self-sown element shown on the steps at the front of the path, there is some minor evidence that the tread of the step first down from the adjacent footpath has sunk. There is some evidence that portion of the steps below (both risers and treads) may have rotated. There is no evidence that we have that the small vegetative element, which is undoubtedly an element of a Liquidambar, was from a sucker rather than from self-sown and that gives rise to no jurisdiction for the reasons earlier outlined.

35 However, again, if we be wrong on that, we have considered whether or not there is any evidence, as a matter of discretion, upon which we could order any intervention with or removal of the tree based on that single element of suckering. Although there is a slightly greater element of displacement with respect to the steps than is the present position with respect to the minor cracking of the path at the rear of the property, there is, again, insufficient level of damage, even taking the applicants' case at its highest, that would warrant any order with respect to the tree. No application for rectification, even taking the applicants' case at its highest, is made with respect to those steps. As a consequence, we do not propose to make any order as a matter of discretion even if we have jurisdiction arising from that.

36 We observe, at this stage, that, should circumstances change (as discussed in Hinde v Anderson & Anor (2009) NSWLEC 1148), this decision does not preclude the applicants making some future application (which would be dealt with on the facts and circumstances of that application) should circumstances have changed sufficiently for that to be warranted.

37 As a consequence of that, the orders of the Court are:

(1) The application is dismissed.

(2) The exhibits, other than Exhibits A and B, are returned.

Tim Moore

Senior Commissioner

Judy Fakes

Commissioner of the Court

Decision last updated: 05 March 2014