Land and Environment Court New South Wales

• Medium Neutral Citation: Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292
• Hearing dates: 26 September 2011
• Decision date: 04 October 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; some tree removal ordered; part compensation ordered

• Catchwords: TREES [NEIGHBOURS] Damage to property; dividing fence; retaining wall; relevant provisions of the Dividing Fences Act 1991
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Dividing Fences Act 1991; Dividing Fences and Other Legislation Amendment Bill 2008; Interpretation Act 1987
• Cases Cited: Yared v Glenhurst Gardens Pty [2002] NSWSC 11; Dean v Ellsworth [2010] NSWLEC 1032; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr F Riggio (Applicant); The Estate of the late Phyllis Annette Lockard (Respondent)
• Representation: Applicant: Mr F Riggio (Litigant in person); Respondent: Mr D Cabal (Solicitor); Respondent: Dunn Legal (Robert T. Dunn & Co.)
• File Number(s): 20494 of 2011

Judgment

1 COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Narrabeen against the estate of the owner of trees growing on an adjoining property.

2 The application was originally made against Mr Stewart Lockard. However, leave was granted at the on-site hearing to amend the application to the Estate of the late Phyllis Annette Lockard as the title of the land has not as yet been transferred to Mr Stuart Lockard, her son and executor.

3 The applicant is seeking Court orders for the removal of 6 nominated trees that he contends are causing damage to a fence and retaining wall. Orders are also sought for the respondent to pay for the rebuilding of the full length of the existing retaining wall and the full length of the dividing fence from the street to the rear of the parties' properties. These orders are sought pursuant to s 7 of the Trees Act and s 13A of the Dividing Fences Act 1991 . Quotes obtained by the applicant in 2008 for the works he desires advise sums of $49,302 and $49,385.

4 Alternative orders filed by the respondent include the removal of Tree 4 at the respondent's expense; the equally shared cost of a survey to establish the exact location of the boundary; and the equally shared cost of replacing the wall and the fence. A quote dated 14 September 2011 gives a cost of $25,762 for the works (excluding tree removal).

The trees and the site

5 The trees and alleged damage were inspected from both properties. The trees are located along the northern side boundary of the respondent's property. The applicant's property is the adjoining property to the north.

6 There are trees other than the six nominated trees growing along the boundary. From west to east, Tree 1 is a mature but relatively small Cupressus sempervirens , Tree 2 is a Hibiscus sp shrub, Trees 3,4 and 5 are Nerium oleander (Oleander), and Tree 6 is a Melaleuca sp of small stature. It is noted that there is a Monstera to the east of Tree1 and three Hibiscus to the east of Tree 3, between Tree 3 and a brick wall associated with a swimming pool on the respondent's property. There is another Hibiscus to the east of that wall to the west of Tree 4. The applicant stated that he was not concerned about these additional shrubs. There are also a number of small growing plants and weeds growing between and amongst the nominated trees.

7 The dividing fence is comprised of three elements. The first 10m section from the street frontage consists of horizontally interwoven timber palings; the next 12m section is a conventional timber paling fence to ground level (a row of pavers on edge on the applicant's side retains some soil); the remaining section is a timber paling fence set on/above a 4 course concrete block retaining wall. The middle and last sections of timber fence are in poor repair with some palings and sections missing. Photographs included in exhibits B and C show the condition of the fence and parts of the retaining wall.

8 The applicant contends that the roots of Trees 1-6 have pushed the retaining wall and fence onto his property by approximately 210mm. This is based on a survey prepared by Kiprovich & Associates Pty Ltd showing the location of the boundary, the retaining wall and the southern side of the applicant's dwelling. This contention appears to be based on the applicant's assumption that the retaining wall was originally constructed on the boundary of the two properties. It was put to the applicant that as the wall appears from the survey to be on his property, it was probably constructed on his property. The applicant rejected this proposition.

9 The applicant also contends that the roots of the respondent's trees, apart from shifting the entire retaining wall, have displaced and cracked sections of it. Similarly, the trees and the inaction of the respondent have led to soil being pushed against the fence causing its state of disrepair.

10 The applicant purchased his property in 1980; the fence and the retaining wall were in existence at the time. The respondent's son considers that the fence and wall could date back to 1968 when his family moved into their property. Therefore, the fence and wall are at least 31 years old and possibly 43 years old.

11 At the on-site hearing, the state of the fence and wall illustrated in the applicant's photographs was confirmed. However, it is noted that not all sections of the retaining wall are damaged. It is also noted that there are no weep holes in the wall.

12 In the vicinity of Tree 1, there is some displacement and dislodgment of some of the blocks near the western end of the wall. However, the displacement is not opposite the tree and the applicant was unable to show me any roots of the Cypress that may have caused this displacement. I note that the end of the wall has no return or pillar to anchor the wall. The applicant stated that the wall is not constructed on any footings.

13 There is no damage to the retaining wall in the vicinity of Tree 2. Tree 3 is growing against the wall and a roughly 1.5m section of wall, including 5 cracked and displaced blocks, is likely to have been damaged by that tree.

14 The base of Tree 4 is clearly growing against the wall and appears to have caused displacement of an approximately 1.5m section of the wall. There is very minor cracking of the mortar between the blocks in the vicinity of Tree 5 as well as one displaced brick in the third course; however, cracking in the mortar is also noted in other sections not close to the nominated trees. There is displacement of three blocks on the top course of block work adjacent to Tree 6.

15 An expert report from Jack Hodgson Consultants Pty Limited, Consulting Civil, Geotechnical and Structural Engineers obtained by the respondent's solicitor contains the following opinion on the condition of the retaining wall.

As there is a cross fall that drops to the north the wall provides both properties with equal benefits. It supports a fill that levels No 147 [respondent's property] and a cut that levels No 149 [applicant's property].

The retaining wall is not constructed to current engineering standards and is not considered stable over the long term. It is not concrete filled and contains no steel reinforcing. The lack of concrete infilling and reinforcing is the primary reason the wall is in the process of failing. It is not constructed to adequately resist the normal lateral earth pressures exerted by the soil behind the wall. The presence of the vegetation on the uphill side of the wall has contributed to the movement but it is our opinion the wall would be in the process of failing due to the pressures of the soil alone whether vegetation was present behind the wall or not.

16 The consultants recommend the wall be demolished and replaced with a wall constructed to current standards, including an extension to the west to support a cut batter that is currently not retained. Similarly, they recommend the paling fence be replaced.

17 When questioned as to when the applicant raised his concerns with the respondent, he said he spoke to the respondent's son in 2008. According to the applicant's oral evidence, Mr Lockard agreed to share the cost of a replacement fence but not the wall as he considered the wall to be in reasonable order. The applicant said that he wouldn't agree to a new fence unless the wall was replaced. He then went on to say that at the time he was prepared to share the cost of the wall and the fence as long as the respondent removed the trees and soil behind the wall.

18 In Mr Lockard's affidavit at [15] he states that in or about 2008, the applicant's son approached him about damage to the retaining wall on the applicant's side. Shortly thereafter, when the applicant returned from overseas, Mr Lockard said that he made a verbal offer to the applicant to pay 50% of the cost of repair or replacement of the wall and the fence but that the applicant rejected the offer. He states that Mr Riggio said that he (Mr Lockard) should pay the whole cost of the replacement of the wall and fence.

19 It was confirmed at the hearing that the last time the matter was raised by the applicant was by way of the application under the Trees Act.

Jurisdictional and discretionary considerations

20 Under s 10(2) of the Trees Act, the Court must not make an order unless it is satisfied that any of the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person.

21 If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. The order sought by the applicant is the removal of the trees and the full replacement of the fence and wall at the respondent's expense. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees act.

22 Section 7(1) of the Dividing Fences Act 1991 provides that:

(1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

23 Section 13A of the Dividing Fences Act 1991 provides the Land and Environment Court (LEC) with the jurisdiction to make orders for the entirety of dividing fences that may be partly damaged by trees subject to the Trees Act and which meet the jurisdictional tests in s 10(2) in that Act. This amendment to extend the jurisdiction to the LEC was introduced in the Dividing Fences and Other Legislation Amendment Bill 2008 and the amendments came into force in July 2010.

Submissions

24 The applicant submits that the state of disrepair of the fence and retaining wall rests entirely with the respondent, as it is the respondent's land and vegetation causing the damage to the wall and the fence. The alternative orders suggested by the respondent's solicitor were rejected.

25 Mr Cabal, the respondent's solicitor, submits that the applicant has not proved, on the balance of probability, any nexus between the damage to the wall near Tree 1 and Tree 1 bar proximity. He contends that Tree 2 has not caused any damage and therefore the Court has no jurisdiction with respect to this tree. He accepts that Trees 3 and 5 are close to the wall but there is no conclusive evidence that these trees have damaged the wall. In regards to Tree 4 he accepts that on the balance of probability, this tree is causing damage to the wall. He considers that the displacement of the top 3 blocks near Tree 6 is due to a natural shift in the soil.

26 Mr Cabal suggests that it may be problematic to replace portions of the old wall. He submits that if any orders are to be made they should be on the basis of sharing the costs between the parties as the retaining wall adds value to both properties. He contends that to order his client to pay for the entirety of the works, as requested by the applicant, would have the effect of disproportionately advantaging the applicant. In support of this contention he cites Austin J in Yared v Glenhurst Gardens Pty [2002] NSWSC 11 at [121]:

[112] However, there is another powerful consideration pointing against my making a mandatory order to compel the defendant to carry out remedial work [on a retaining wall] wholly at its expense. To make a mandatory order in the present case would be to commit the defendant to very substantial expenditure which would disproportionately enrich the plaintiff. The old and substandard wall would, of necessity, be replaced by modern and effective retention works. Although there is no direct evidence on the point, it is plausible to infer that the value of the plaintiff's property would be enhanced by that work, at no cost to her. That consideration, in its context in the present case, would probably have led me to decline specific relief.

27 Mr Cabal also cites Dean v Ellsworth [2010] NSWLEC 1032 as an example of Court orders for rectification works where the respondents were required to pay less than 50% of the cost of those works on the basis of contributing factors other than the respondents' trees.

28 In response to Mr Riggio's rejection of his client's offer to pay 50% of the cost of replacing the retaining wall and the fence, Mr Cabal contends that should I be minded to make an order under the Dividing Fences Act 1991 , the amendments to that Act limit the scope of works to which a contribution can be ordered. To support this contention he cites paragraph 4 of the second reading speech of the Dividing Fences and Other Legislation Amendment Bill 2008 made by the Hon. Penny Sharpe and recorded in Hansard.

The intention of the scheme set out in this bill is that only fencing work necessary for the immediate support of a fence will be caught within the scope of the power to order a contribution for fencing work. This will mean in practice that a contribution will not be available for the work that is necessary for repairing a retaining wall when those funds are spent purely on the maintenance of the retaining wall for its principal purpose as a retaining wall and not as part of a dividing fence. An example of the sort of fencing work that will be the subject of a contribution is work on the fence footings on top of a retaining wall. No expenses for the construction of the retaining wall itself are intended to be claimable. The operation of section 26 of the Dividing fences Act as amended by this bill means that the Dividing Fences Act does not affect the operation of laws that affect the rights of persons to support a retaining wall. This means that the duty to preserve support for neighbouring land created by section 177 of the Conveyancing Act 1919 is preserved.

Findings

29 As the applicant nominates six trees, a finding must be made for each of them. As the applicant rejected the respondent's offer, the matter of compensation for the fence and the retaining wall must be considered in relation to each of the trees and with regards to the relevant provisions of the Dividing Fences Act 1991 and s 10(2) of the Trees Act.

The fence

30 In respect of the paling fence, I am satisfied that there is a contribution from the foliage of some of the trees, in particular Trees 3, 4, 5 and 6 growing against the fence and causing or having caused damage. Therefore s 10(2) of the Trees Act is satisfied in this regard for these trees and the Court has the jurisdiction to make orders both under the Trees Act and s 13A of the Dividing Fences Act 1991. The orders with respect to the trees are covered elsewhere in this judgment.

31 The making of orders under s 9 of the Trees Act requires consideration of relevant matters in s 12. Most relevant in this case is s 12(h)(i) - anything other than the tree that is contributing/ has contributed to the damage. In this matter, the age of the fence (more than 31-43 years old) and its material (timber palings) would seem to me to be the major factors contributing to its dilapidated condition. The applicant asserts that roots, soil and other debris have been allowed to accumulate behind the fence due to the neglect of the respondent. I was shown no evidence of root pressure on the fence and the Trees Act does not cover soil and other materials that may have moved down slope. I am not satisfied that the fence has been damaged by a negligent or deliberate act of the respondent. If this were to be proven, s 8(1) of the Dividing Fences Act 1991 would require the respondent to be liable for the entire cost of the replacement of the fence.

32 Therefore, as this is a dividing fence well past its useful life, orders will be made in accordance with s 7(1) of the Dividing Fences Act 1991 and both parties will be required to equally share the cost of a replacement fence from the street to the rear boundary of both properties.

The retaining wall

33 Pursuant to s 34(2) of the Interpretation Act 1987 , the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Dividing Fences and Other Legislation Amendment Bill 2008 quoted in [28] of this judgment. In the light of this explanation of the intent of the amendment, I consider that the power of the Court under the Dividing Fences Act is limited to only ordering compensation for fencing work necessary for the immediate support of a fence and not to the entirety of the retaining wall. In this case, the fence is supported by posts set onto and partially into the retaining wall, and onto the ground at the eastern end of the wall. Therefore, any orders made will be limited to shared costs for the adequate support of the fence. As the survey sketch plan shows that the majority of the wall is on the applicant's property, another survey will be required to accurately locate the boundary and therefore the appropriate location of the fence and any necessary supports which may/ may not involve the retaining wall as part of that support system.

34 Notwithstanding the provisions of the Dividing Fences Act 1991 , s 10(2) of the Trees Act must be considered for each of the trees in relation to the retaining wall. If satisfied, the Court may make orders for some compensation for repair/ replacement of those parts of the wall that have been or could be, in the near future, damaged by any of the trees subject to the application. It is important to note that the Court can only make orders under Part 2 of the Trees Act if the property alleged to be damaged is on the applicant's property. I am satisfied that the survey sketch plan shows the retaining wall to be principally, if not wholly, on the applicant's land. The findings in relation to each of the trees and the wall are discussed below.

The trees

35 With regards to Trees 1 and 2, in many matters heard under the Trees Act, an assumption is made that due to the proximity of a tree to a structure (that may or may not be damaged), the tree is likely to have caused, or could in the future cause, damage to that structure. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Craig J discussed the obligation created by s 10 for the Court to be satisfied of the causal nexus between the tree the subject of an application and the damage claimed by the applicants. This requires an assessment of all the evidence before the Court. This evidence may be factors other than the tree and which may require the input of a range of expert witnesses. At [62] Craig J stated

As the respondents submitted, something more than a theoretical possibility is required in order to engage the power under [the Trees Act] to make an order to remedy, restrain or prevent damage as a consequence of a tree. In the language of Jenkinson J in MacDonald , confidence on a "bare preponderance of probability" has not been engendered on the evidence adduced that the Sydney Blue Gum was a cause of damage to the applicants' dwelling. Embracing the language of the applicants' submission, I have not been left in a state of belief, on the balance of probabilities, that the tree is a cause of that damage."

36 As Craig J was not satisfied on the evidence in Smith & Hannaford , I am not satisfied on the evidence before me that the damage to the retaining wall near Tree 1 has been caused by Tree 1. There is no obvious damage to the wall in the vicinity of Tree 2. Therefore I am not satisfied that either of these trees has caused, or is causing, damage to the retaining wall. Section 10(2) also refers to 'future damage'. The guidance decision in Yang v Scerri [2007] NSWLEC 592 considers the 'near future' to be a period of 12 months from the hearing. In the circumstances of this matter I consider that time frame to be appropriate. On this basis, I do not consider either tree is likely to cause damage to the wall in the near future.

37 Therefore as a consequence, as the tests in s 10(2) are not met for Trees 1 and 2, the Court has no jurisdiction to make any orders for the removal of these trees or compensation for damage to the parts of the wall in proximity to them.

38 With respect to Trees 3 and 4, I am satisfied, on the balance of probability, given the fact that these trees are pressing against the wall, they have contributed to the damage to approximately 1.5m sections of retaining wall immediately adjacent to the base of each of the trees.

39 Therefore as s 10(2) is satisfied, the Court may make orders in respect of these trees. However, s 12(h)(i) is a necessary consideration. In this matter, the retaining wall is at least 31 years old, if not 43 years old. The uncontested evidence is that the wall has not been constructed to modern standards, is not on appropriate footings, and has no weep holes or steel reinforcing. The applicant rejects the impact of soil and water pressure. The applicant also discounted the veracity of the respondent's expert's report as the report said the wall was only 'at least 10 years old' when he (the applicant) knew it to be much older. I consider this assertion to be unfounded as the report clearly states that the author was 'not informed of its exact age'.

40 I consider that while the physical pressure of the roots of Trees 3 and 4 has contributed to the displacement of the wall in their immediate vicinity, it is the age and construction of the wall, in combination with the pressure of soil and water that are likely to have migrated down slope over the decades the wall has been in existence, that are the major factors contributing to its condition. I also find it difficult to accept the applicant's contention that the trees have pushed the entirety of the wall onto his property. It is difficult to understand how this could occur in such an even fashion along its length. A more likely explanation is that the wall was constructed on his property in the first place.

41 However, because of the contribution of the respondent's trees to damage to part of the retaining wall, some contribution to its repair or replacement will be ordered. Orders will also be made for the removal of Trees 3 and 4 due to the ongoing impact the trees will have on the wall or its replacement. The removal of these trees will be at the respondent's expense.

42 Considering Trees 5 and 6 and the retaining wall, there is slight cracking of the mortar in the vicinity of Tree 5 and dislodgement of three of the top blocks near Tree 6. I am not satisfied that the nexus between the trees and the defects has been proven on the balance of probabilities. The mortar between the blocks is old and is similarly cracked in other sections of the wall away from trees. The build up of soil and other low growing vegetation may have placed some pressure on the week mortar. Even if I were to find some contribution from the trees, as a matter of discretion, I am not minded to make any orders with respect to the wall, however, I am satisfied that Trees 5 and 6 will need to be removed to enable the reconstruction of the dividing fence. The cost of removal is to be at the respondent's expense.

Conclusions and Orders

43 While there has been a minor contribution of the respondent's trees to the dilapidated state of the timber dividing fence, the main reason for its condition it its age. As previously stated, the parties are to equally share the cost of its replacement.

44 I concur with Austin J in Yared cited at [26] in that, even if I had the power to do so, it would be unreasonable to order the respondent to pay the full cost of the replacement of the retaining wall to a much higher standard. My interpretation of the amendment to the Dividing Fences Act is that I am limited in what orders I may make with respect to the retaining wall. I am, however, able to make orders regarding those sections of the wall where the nexus between the damage and the tree has been sufficiently established. However, I also note Mr Cabal's submissions that repair of sections may be difficult and that there is benefit to be derived by both parties.

45 Therefore, as a consequence of the forgoing, the Orders of the Court are:

(1) The application to remove trees is upheld in part.

(2) The application for compensation is upheld in part.

(3) Within 30 days of the date of these orders, the applicant is to engage and pay for a registered surveyor to accurately determine the location of the boundary between the parties' properties. A copy of the survey is to be provided to Mr Stuart Lockard or his solicitor.

(4) Mr Lockard is to reimburse the applicant 50% of the cost of the survey within 14 days of the receipt of a tax invoice for the completed survey.

(5) Within 60 days of the date of these orders, and after the completion of the survey in order 3, the applicant is to obtain 3 quotes for the replacement of the timber dividing fence of a standard not greater than the standard for a sufficient dividing fence including any works required for the installation of supporting posts. The quote is to be for the full extent of the fence from the street to the rear boundary of the parties' properties and is to include the removal of the existing fence. If either party wants a fence of a greater standard, the quote must clearly indicate the price for a standard fence and a separate sum for the higher standard fence. The party requiring the higher standard is to pay for 50% of the cost of the standard fence plus the full amount of all additional costs of the higher standard fence. Copies of the quotes are to be provided to the respondent and the parties are to agree on the contractor. Should the respondent wish to, the respondent may obtain a separate quote for the same works within the same time frame and applying the same criteria.

(6) The fence is to be replaced by 1 March 2012. The work is to be paid for by the applicant. The respondent is to reimburse the applicant 50% of the cost of the fencing works (as well as any additional costs of a higher standard fence if required by the respondent in accordance with Order 5) within 14 days of the receipt of a tax invoice for the completed works.

(7) Within 60 days of the date of these orders, the applicant is to obtain 3 quotes for the removal and replacement of the entirety of the retaining wall and for the repair of the two 1.5m long sections adjoining Trees 3 and 4. The quotes are to clearly identify these two options. Should the respondent wish to, the respondent may obtain a separate quote for the same works within the same time frame and applying the same criteria. Copies of the quotes are to be provided to each of the parties.

(8) The applicant has until 1 March 2012 to have the retaining wall rebuilt or repaired otherwise order 9 lapses.

(9) Depending upon the action taken by the applicant, the respondent is to either reimburse the applicant 20% of the cost of the replacement of the entire retaining wall or 50% of the cost of the repair of the two nominated sections, within 14 days of the completion of the works.

(10) Within 60 days of the date of these orders and before any works commence on the replacement of the dividing fence and or the retaining wall, the respondent is to remove Trees 3, 4, 5 and 6 to a depth of 300 mm below ground for a distance of at least 300 mm from the respondent's side of the retaining wall.

_________________________________

J Fakes

Commissioner of the Court

Decision last updated: 07 October 2011