Land and Environment Court New South Wales

• Medium Neutral Citation: Fox v Ginsberg [2011] NSWLEC 1204
• Hearing dates: 16 June 2011
• Decision date: 16 June 2011
• Jurisdiction: Class 2
• Before: Moore SC, Galwey AC

Decision

(1)The application with respect to T2 is dismissed;

(2)Noting the respondent's intention to remove T3, the application with respect to T3 is dismissed;

(3)The application for removal of T1 is dismissed;

(4)The brick wall and footing of the present brick wall between the applicant and respondent's property is to be disassembled and removed under the supervision of a qualified builder;

(5)The respondent is to pay the costs of removing and disassembling the brick wall and fitting, cleaning the bricks so that they are capable of being re-erected;

(6)The bricks are to be stored in the rear yard of the applicant's property pending reconstruction of the wall;

(7)The respondent's structural engineer is to provide a plan of the replacement wall to construction certificate standard and that that plan is to be filed and served by the respondent by the close of business on 30 June;

(8)The matter is set down for mention before us at 8:30am on Thursday 7 July;

(9)If there are any matters concerning the adequacy of the plans, or if there has been a failure to comply with the direction to file and serve the plans, if there is no matter requiring the mention to proceed, the applicant's solicitor is to advise the Court and the respondent of this and the mention will be vacated;

(10)The respondent is to construct at her cost, the planned wall in accordance with the plan provided by her structural engineer, pursuant to these directions and to clad that wall with the bricks that are removed from the existing wall, with that cladding to be on the western side of the wall facing the house owned by the applicant in Moncur Street;

(11)The reconstruction of the wall and its cladding with those bricks is to be completed within 90 days of these orders;

(12)The reconstruction is to be at the cost of the respondent;

(13)For the purposes of access, the applicant is to give all necessary access to the respondent to carry out the terms of these orders, with such access to be on reasonable notice at a reasonable hour of the day and with the applicant having the opportunity to supervise that access if required;

(14)Questions of costs are reserved;

(15)In addition, the respondent is ordered to have an arborist with AQF level III qualifications and appropriate WorkCover insurances, remove all deadwood down to 20 mm in diameter at the point of attachment to the nearest trunk.

(16)All deadwood is to be removed within 90 days of the date of these orders.

(17)The work in (15) is to be carried out in accordance with Australian Standard 4373 of 2007 for pruning of amenity trees.

(18)The deadwooding that is ordered in (15) is to be repeated at 12 monthly intervals from the date of the first removal of deadwood from each of trees T1 and T2 (noting that the order with respect to T2 is founded on s 10 (2)(b) of the Act, as is the order for deadwood removal from T1).

• Catchwords: Damage to property, amenity
• Legislation Cited: Trees (Disputes Between Neighbours Act) 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Barker v Kyriakidis [2007] NSWLEC 292
• Category: Principal judgment
• Parties: J Fox (Applicant); N Ginsberg (Respondent)
• Representation: Solicitors; Mr T Sattler; Sattler & Associates (Applicant); Respondent in person
• File Number(s): 20155 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 In the rear yard of a house in Spicer Street, Woollahra, three trees are growing in proximity to the rear boundary - a boundary that is shared with a house with its street address in Moncur Street, Woollahra.

2 There is a difference in levels between the rear private open spaces of the two dwellings, such that the house in Spicer Street has its private open space some metre and a half or so higher than that of the Moncur Street dwelling. The boundary between the two properties is delineated by a single skin brick wall, with one engaged pier at its midpoint, that has historically been generally on the common boundary between the properties. To the extent that it is not (and has not) equally been located on the common boundary between the properties is not a matter of relevance in these proceedings that have been made by application under Part 2 of the Trees (Disputes Between Neighbours Act ) 2006 (the Act).

3 The application that is made by the owner of the property in Moncur Street, seeks an order for removal of the three trees along the boundary in the Spicer Street property. The three trees are two large Broad Leaved Privet trees ( Ligustrum lucidum ), and a smaller but nonetheless presently substantial but immature Fig ( Ficus spp ). The Fig is a tree that the owner of the Spicer Street property anticipates, herself, removing at some time in the immediate future.

4 The application is made on the basis that each of the three trees either has caused, is causing, or is likely to cause damage to the applicant's property, they being three tests to found jurisdiction as set out in s 10(2)(a) of the Trees Act .

5 We have had the advantage of reports on behalf of the applicant, by an arborist, Mr Brooks, and by a consulting structural engineer, Mr Benitez. On behalf of the respondent we have had counter pointing reports from an arborist, Mr Crawford, and a structural engineer, Mr Smith. In addition, Mr Smith has been present during the course of the site inspection and on-site hearing, and has given oral evidence during that process.

6 There is no doubt, as is obvious not only from the reports but also from a cursory inspection of the brick wall from the applicant's property, that the wall is severely compromised and that, as is conceded by the respondent, has been caused by at least the first of the Privet trees (one that has been designated T1 in Mr Brooks' report). We have carefully looked at the nature of the damage to the fence and we have also examined the brick wall in the vicinity of T2 (the second Privet) and T3 (the Fig) that are at the southern end of the wall between the two properties.

7 The only immediately discernible damage to the wall at the southern end is in the immediate vicinity of T3 and comprises a single cracked brick at the upper level of the wall. There is a displacement by rotation of the brick wall on the boundary between the applicant's property and the block of home units with a frontage to Moncur Street immediately to the south, but there is no basis upon which we could conclude that that rotation has been caused by a tree, as the rotation appears to be one from a south to north basis.

8 Mr Smith's evidence, during the course of the site inspection, not merely confirmed the self-evident damage to the wall caused by T1, but also drew our attention to the fact that the horizontal crack at the foot of the wall tapered and concluded a metre or so to the north of T2 and had narrowed, on our observation, from the point of the major vertical cracking in the immediate vicinity of T1, through the point of its closure towards T2.

9 It is necessary, for the purposes of the Act, for us to be satisfied, on what might generally be regarded as a civil standard of proof, that a tree has met one of the jurisdictional tests to which we have earlier referred. Those questions, to establish jurisdiction, must be asked with respect to each of these three trees before we have jurisdiction to consider intervention with or removal of any of the trees. There is no doubt in these proceedings, conceded by the respondent, that that jurisdictional fact has been established with respect to T1 - indeed, it is blindingly obviously so.

10 Although Mr Brooks, the applicant's arborist, and Mr Benetiz, the applicant's structural engineer, expressed conclusions with respect to T2 causing damage to the wall, there is no detailed explanation of the facts and assumptions that they make to reach those conclusions. Our observation of no rotation or displacement of the wall in the vicinity of T2, means that, despite those conclusions, in the absence of the explanation of the underlying facts and assumptions, and being contrary to our visual observation, we are unable to be satisfied that T2 has caused, is causing, or indeed is likely to cause in the near future, damage to the retaining wall.

11 We accept that it is probable, on the basis of the location of the minor cracking at the upper end of the wall immediately adjacent to T3, that that tree has caused that damage to that element of the wall. As a consequence, that damage engages our jurisdiction with respect to T3.

12 However, the necessary consequence of the foregoing is that the damage element of the application with respect to T2 is dismissed.

13 We turn first to deal with what should be the position with respect to T3, as it is the easier to deal with. The damage that is self evidently caused to the wall by that tree is minor and purely cosmetic. As a matter of discretion, having regard to the fact that the applicant is unable to demonstrate that there is likely to be further severe damage to the wall as a consequence of that tree, and noting that the respondent proposes, independently, that tree will be removed, we are satisfied that, at this time, there is no basis as a matter of discretion upon which it would be appropriate to order the removal of that tree. We note, however, in this context, consistent with the Hinde v Anderson & anor [2009] NSWLEC 1148, that if the tree were not to be removed, that there might be some change in circumstances as a consequence of that non-removal that might found some future application, if it were considered appropriate by the applicant to make such future application.

14 Before leaving T2, we also deal with the question that was raised by the applicant, through her solicitor, Mr Sattler, that fruits from the Privet trees (without distinguishing between the two of them), were falling onto her property and causing suckering or the growth of small Privet plants in her garden bed or in or adjacent to the cracks in the brick paving in the backyard.

15 Although this was described as something that might have otherwise been encompassed within an action for nuisance, an action that is for these trees abolished by the provisions of the Trees Act , there was no demonstration to us as to how those suckers were in fact ones that could satisfy any of the tests under s 10(2)(a) of the Act, in that there was no evidence that they had caused, are causing, or were likely in the near future, to cause damage to the applicant's property. The mere fact that there might be some inconvenience to the applicant in removing them, from time to time, is not a basis of founding jurisdiction with respect to either of the trees as a consequence of the deposition of those fruits.

16 In any event, if we be wrong in that conclusion, we have considered whether or not the tree dispute principle published by the Court in Barker v Kyriakidis [2007] NSWLEC 292 (that those who have the aesthetic and environmental benefit of trees in an urban setting, should accept the responsibility for minor maintenance and the collection of removal of detritus that might fall from such trees, such as leaves, fruits, nuts, berries and minor twigs). We are of the view that, in these circumstances, that tree dispute principle should apply and indeed would extend to minor suckering or growth of small plants, that on our observation, reached a maximum height of 60 to 75 mm within the applicant's property.

17 More problematic is what should we do with respect to T1. The applicant's position with respect to this tree is that it has damaged the wall and it has done so such that the wall should be replaced. There is no doubt, on the engineering evidence, that not only has causation been established but that it is appropriate to require replacement of the wall in some fashion.

18 The competing positions with which we are left are firstly, whether the tree should be removed and secondly, depending on the answer to that question, what should be the nature of the structure to be replaced.

19 There is also agreement on the engineering evidence, confirmed by Mr Smith in response to a question, that any reconstruction should be for the full width of the property facing Moncur Street, that is from the southern to the northern boundary, even though there is not an entire coincidence between the boundary of the applicant's property and the respondent's property - the respondent's property being somewhat narrower than that of the applicant.

20 The applicant suggests that the tree should be removed and the existing single skin brick wall disassembled and reconstructed, so that that which would be observed from her property would, essentially, be that which has always been there, save for the removal of the Privet tree.

21 On the other hand, the respondent concedes that it would be appropriate to replace the wall with an appropriate structure, but says that she wishes to retain the amenity that is afforded to her of privacy, wind protection, sun protection a general verdant outlook from her property, by retention of T1 and replacement of the wall with a structurally designed element that would accommodate such minor future growth as might be occasioned by T1 (such minor future growth being contemplated by both the arborists' reports) and that the wall should be constructed in a slightly offset fashion onto the applicant's property to accommodate the tree and retain the amenity afforded to her property. Mr Sattler has indicated that, if we were minded to permit retention of the tree, the applicant did not object to a wall with a minor offset thus permitting such retention to be accommodated.

22 We are satisfied on the balance of the merits, that there is sufficient merit for the respondent retaining the amenity of the tree, for the retention to be permitted (despite the fact that we observe that tree is one that is considered to be a pest species under the relevant New South Wales legislation - a matter we specifically observe has not been pressed on behalf of the applicant in these proceedings). As a consequence of that, we are satisfied that the type of wall postulated by Mr Smith - that is a reinforced masonry block wall - should be designed and constructed in a fashion to accommodate retention of the tree, with a minor intrusion onto the applicant's property as conceded on behalf of the applicant could be appropriate.

23 We are also concerned with the position that was advanced by Mr Sattler on behalf of his client, that there were amenity reasons why the brickwork that is presently embodied in the wall should be retained, as it is thematically consistent with the northern and southern perimeter walls of the applicant's property. Mr Smith conceded, during the course of the site inspection, that it would be possible to disassemble the existing wall in a fashion that would permit its material's retention and that is not contested by the respondent.

24 As a consequence, we are of the view that the merit outcome for the proceedings should be that T1 would be retained; the brick wall would be disassembled and removed (so that it was capable of being reconstructed as, in effect, a decorative skin supported by sufficient footings for that purpose on the applicant's side of a reconstructed masonry reinforced wall, designed in a fashion that would permit the retention of T1). We are satisfied that it would be appropriate to order that that be done within 90 days of the date of making these orders.

25 The one matter in light of those general findings that remains for us to consider is the question of who should pay for that. Whilst the respondent in the proceedings has provided evidence to us concerning her financial situation (a matter that we do not need for privacy reasons to canvass in detail in these proceedings), she has indicated that provided a sufficient period of time is allowed to her, she would be able to accommodate any order that we might make of the nature that we have now outlined. Her proposal, however, was that a portion of the cost should be borne by the applicant, she proposing that the ratio of costs should be 75% borne by her and 25% borne by the applicant.

26 We are unable to accept this proposition, the reason for that is that the entirety of the cause that renders it necessary to replace the wall with a structure of the nature that we have discussed, is the intervention of the respondent's tree. The intervention of the tree makes the reconstruction necessary, the reconstruction of the nature that is required to accommodate the tree, renders it a structure that unless clad with the bricks that will be removed from the existing wall, would be out of step and discordant with the remainder of the structure surrounding the applicant's private open space and thus would be aesthetically discordant.

27 We are satisfied that for a causation basis, the totality of the cost of the reconstruction of the wall should be met by the respondent, including the cladding for decorative purposes with the bricks that will be taken from the deconstructed existing wall. We are satisfied also, that such an outcome is not an inappropriate one, given that the applicant will have the backyard in its present aesthetic form and the respondent will retain the amenity benefits of the trees which she seeks to have preserved.

28 As a consequence of all of that, the orders of the court are as follows:

(1) The application with respect to T2 is dismissed;

(2) Noting the respondent's intention to remove T3, the application with respect to T3 is dismissed;

(3) The application for removal of T1 is dismissed;

(4) The brick wall and footing of the present brick wall between the applicant and respondent's property is to be disassembled and removed under the supervision of a qualified builder;

(5) The respondent is to pay the costs of removing and disassembling the brick wall and fitting, cleaning the bricks so that they are capable of being re-erected;

(6) The bricks are to be stored in the rear yard of the applicant's property pending reconstruction of the wall;

(7) The respondent's structural engineer is to provide a plan of the replacement wall to construction certificate standard and that that plan is to be filed and served by the respondent by the close of business on 30 June;

(8) The matter is set down for mention before us at 8:30am on Thursday 7 July;

(9) If there are any matters concerning the adequacy of the plans, or if there has been a failure to comply with the direction to file and serve the plans, if there is no matter requiring the mention to proceed, the applicant's solicitor is to advise the Court and the respondent of this and the mention will be vacated;

(10) The respondent is to construct at her cost, the planned wall in accordance with the plan provided by her structural engineer, pursuant to these directions and to clad that wall with the bricks that are removed from the existing wall, with that cladding to be on the western side of the wall facing the house owned by the applicant in Moncur Street;

(11) The reconstruction of the wall and its cladding with those bricks is to be completed within 90 days of these orders;

(12) The reconstruction is to be at the cost of the respondent;

(13) For the purposes of access, the applicant is to give all necessary access to the respondent to carry out the terms of these orders, with such access to be on reasonable notice at a reasonable hour of the day and with the applicant having the opportunity to supervise that access if required;

(14) Questions of costs are reserved;

(15) In addition, the respondent is ordered to have an arborist with AQF level III qualifications and appropriate WorkCover insurances, remove all deadwood down to 20 mm in diameter at the point of attachment to the nearest trunk.

(16) All deadwood is to be removed within 90 days of the date of these orders.

(17) The work in (14) is to be carried out in accordance with Australian Standard 4373 of 2007 for pruning of amenity trees.

(18) The deadwooding that is ordered in (14) is to be repeated at 12 monthly intervals from the date of the first removal of deadwood from each of trees T1 and T2 (noting that the order with respect to T2 is founded on s 10 (2)(b) of the Act, as is the order for deadwood removal from T1).

Tim Moore

Senior Commissioner

for

Dave Galwey

Acting Commissioner of the Court

Decision last updated: 21 July 2011