Land and Environment Court New South Wales

• Medium Neutral Citation: Maher v Bourquin [2011] NSWLEC 1267
• Hearing dates: 18 May 2011
• Decision date: 18 May 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Injury to persons; damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Christopher Vincent Maher (Applicant); Annett Bourquin (Respondent)
• Representation: Mr Christopher Vincent Maher (Applicant in person); Ms S Shaddock (Agent for the Respondent)
• File Number(s): 20098 of 2011

Judgment

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

1 This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), made by the owner of a property in Wakehurst Crescent Singleton, against an adjacent property owner.

2 The applicant seeks compensation for the reconstruction of a retaining wall in his rear garden. He contends that roots from the respondent's trees have damaged the wall and as a result it poses a risk to persons in his rear garden and pool area.

3 The applicant also seeks compensation for the application lodgement fee. I informed the parties at the hearing that Commissioners are not authorised to consider costs and therefore that element of the applicant's claim is dismissed.

4 The applicant has submitted two quotations for the repair of the wall - one from a landscape contractor for $1,980 including GST and one from a home maintenance contractor for $2,490 including GST.

5 The hearing commenced with an inspection of the retaining wall from the applicant's pool enclosure after which I inspected the wall and surrounds from the rear garden of respondent's property. The properties are situated on the side of a hill. At the street frontage, the respondent's land is slightly more elevated than the applicant's land. The applicant's land has been excavated at the rear to create a level building pad and pool. As a result, the rear western side of his property is more than 2 m below the rear garden of the respondent's land. The retaining wall, that is the subject of this application, is constructed along this 2 m high interface with the respondent's land.

6 The applicant says the retaining wall was built in about 1985 at the same time as his house. He says the respondent's property was established prior to his occupation. He described the wall construction as a rock stack wall with chitter fill for drainage. The wall abuts the rear garden and pool enclosure. It is about 5 m long and slightly more than 2 m high and is capped with a pebbled concrete apron.

7 The applicant says that Singleton Council approved the wall as part of his house approval, although he could not provide any details of its construction such as approved plans or engineering drawings.

8 The applicant says he first noticed some rocks had fallen from the centre of the wall in April 2009, after which time he contacted a landscape company for advice and a quotation for its repair. He says the contractor told him that roots from trees on the adjacent property had caused the wall to fail.

9 Photographs submitted by the applicant purport to show roots within the failed section of wall, although none of these roots or any other roots were observable at my inspection. The five roots depicted in the photos appeared, in my estimation, to be each less than 10 mm in diameter.

10 The applicant says he then contacted the respondent's agent to discuss the condition of the wall, the trees, and the cost of repairs that he considered should be paid by the respondent.

11 In November 2009, the respondent arranged for the removal of the trees growing on her eastern boundary adjacent to the applicant's house. The respondent says the trees were removed at the request of the tenant, in order to improve vehicle access along the side driveway, however the applicant disputes this. The respondent agreed that the tree removals were also a response to the applicant's concerns about his retaining wall.

12 The applicant and the respondent attended mediation in November 2009. The applicant said he wanted the wall reconstructed in accordance with the existing construction. The respondent wanted details of the wall construction and requested an affidavit as to the cause of the failure. At today's hearing the applicant said he thought the mediation was a waste of time and achieved nothing.

13 At the time of the hearing there were no trees or stumps remaining along the respondent's side boundary, however the parties agreed that there were five or six trees, possibly a species of Pencil Pine of about 3 to 5 m in height. The parties also agreed that the trees were growing along the side boundary between the two properties and that none were adjacent to the applicant's failed wall. Two photographs tendered by the applicant indicate a block of foliage to the south of his wall, although it is not possible to identify the species.

14 On inspecting the respondent's rear garden, I was shown the approximate location of the five trees along the property boundary. The parties agreed that the approximate location of the tree closest to the failed retaining wall was about 2 m to the south, that is, 2 m in oblique distance from the southern end of the retaining wall where it abuts the applicant's house and thus none of the respondent's trees stood adjacent to the section of wall that has failed.

15 During my inspection, I noted a dry packed stone wall extending along the western boundary of the applicant's land. Although this wall is constructed of similar materials to the failed wall, it is substantially lower due to the graded rise in level toward the street.

16 The respondent's five trees originally stood adjacent to this lower and more southerly extension of the failed retaining wall. I saw no evidence of any failure in this section of wall, despite its close proximity to where the trees were previously situated.

17 Under s 10(2) of the Act, 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.

18 In consideration of the evidence tendered, and of my inspection from both properties, and of the evidence presented at the site hearing, I am not satisfied that a tree on the respondent's land has caused damage to the applicant's retaining wall and therefore the Court's jurisdiction is not enlivened and orders cannot be made.

19 However, even if roots from the respondent's trees were a contributing factor in the failure of the wall, I would be required to have regard to the discretionary matters under s 12 of the Act. In this regard, the relevant matter is at:

(h) (i) anything other than the tree that has been contributed, or is contributing to any such damage.

20 I am of the opinion that the factors contributing to the failure of the retaining wall are:

• The age of the wall. On the applicant's evidence the wall is more than 25 years old. It is of a completely unknown construction standard. It is constructed of dry pack rocks set against a 2 m high clay interface with shrink and swell properties and high water holding capacity.
• The wall is at the base of the sloping rear garden of the adjacent land and therefore it is subject to seepage and periodic run-off.
• None of the respondent's trees stood adjacent to the failed section of wall. The closest tree being about 2 m oblique distance from the wall.
• A retaining wall of similar dry packed rock construction but considerably lower in height runs along the applicants western boundary. This wall is essentially an extension of the failed wall. The respondent's trees previously stood adjacent to this retaining wall however I saw no evidence of damage to this wall despite its very close proximity to the trees.

21 As a result of the foregoing, I am not satisfied that there is any causal relationship between a tree on the respondent's land and the failure of the applicant's retaining wall, and therefore the application is dismissed.

Phil Hewett

Acting Commissioner of the Court

Decision last updated: 14 September 2011