Land and Environment Court New South Wales

• Medium Neutral Citation: Pisula & anor v Luttrell [2011] NSWLEC 1356
• Hearing dates: 24 November 2011
• Decision date: 13 December 2011
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)Within 30 days of the dates of these orders, the Applicants are to obtain and provide to the Respondent three quotes for repairing the damaged section of the retaining wall, which is approximately 10 metres in length, to a similar standard and using similar material as the existing retaining wall.

(2)The Respondent has 7 days from receipt of quotes from the Applicant to respond to the Applicant with their choice of contractor otherwise the Applicant chooses the contractor.

(3)The repair works to the retaining wall are to be completed within 3 months of the date of these orders otherwise order 4 lapses.

(4)The Respondent is to reimburse the Applicants 30% of the cost of the works in order 1 within 21 days of the receipt of a tax invoice for the completed works.

• Catchwords: TREES [NEIGHBOURS]; damage to property; tree already removed; compensation ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Interpretation Act 1987
• Cases Cited: Osborne v Hook [2008] NSWLEC 1231; Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Timmins v Park [2011] NSWLEC 1308; Yang v Scerri [2007] NSWLEC 592
• Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) November 2009
• Category: Principal judgment
• Parties: L Pisula & G Pisula (Applicants); G Luttrell (Respondent)
• Representation: John Kavanagh (Applicants); J A Kavanagh & Co; Patrick Riordan (Respondent); Thompson Cooper Lawyers
• File Number(s): 20590 of 2011

JUDGMENT

1 ACTING COMMISSIONER: Two Strelitzia nicolai (Giant White Bird of Paradise) plants grew on the Respondent's property in Woronora Heights adjacent to the common boundary with the Applicants' property. Although the plants have been removed, the Applicants claim that the plants caused damage to a retaining wall on their land and, furthermore, that parts of the plants remaining in the ground may cause damage to their retaining wall in future.

2 The Applicants make this application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). They seek the following orders:

(1) That the Respondent remedy, restrain or prevent further damage to property on land owned by the Applicants by trees situated on land owned by the Respondent.

(2) That the Respondent pay compensation to the Applicants for damage to the Applicants' property.

(3) That the damage payable by the Respondent, for removal and replacement of a brick retaining wall, replacement of soil and plants and hire of Acrow props, be a sum of $6,185.30.

(4) That the Respondent pay the Applicants' costs of these proceedings.

3 The Respondent's position is that he has always taken action when informed of damage and is therefore not liable for the damage.

History

4 As the Court needs to consider various matters outlined in s 12 of the Act, which will be discussed later, it is relevant to set out a timeline.

5 It was not stated when the two Strelitzia plants were planted, however it was not disputed that they were planted by the previous owner of the Respondent's property.

6 The Applicants moved in to their property in 1990.

7 The eastern part of the Applicants' property was, and still is, lower than the Respondent's property, which is to the east.

8 In 1991 the Applicants constructed a retaining wall approximately 600mm in from the boundary. This retaining wall supports a raised bed between itself and the boundary. The top of the wall is approximately 800mm above the paved area between itself and the dwelling. A pergola roof covers this area. The Applicants state that the wall was constructed to prevent water 'flooding' in from the Respondent's property, so proper drainage was installed behind the wall at the time of construction.

9 The Respondent purchased his property in 2001. The two Strelitzia plants were already present. An Umbrella Tree was also growing on the property adjacent to the boundary, close to the two Strelitzia plants.

10 In early 2008 (according to the Applicants) or in 2004 (according to the Respondent's affidavit) the Applicants brought the Respondent's attention to a crack that had appeared in the retaining wall. It appears that both parties agreed that roots from the Umbrella Tree were the main cause, despite the presence of the Strelitzia plants.

11 The Respondent, with or without the help of the Applicant (it is unclear), undertook the removal of the Umbrella Tree.

12 The Respondent claims that the Applicant pointed out to him in 2008 that a Strelitzia plant was pushing on the boundary fence and that he subsequently removed and poisoned that one tree.

13 In early 2010 the Applicants informed the Respondent in writing that Strelitzia plants on his property were causing damage to their retaining wall, along with other damage including distortion of pillars to the pergola and misalignment of the boundary fence.

14 According to the Respondent's affidavit, in April 2010 the Respondent removed the above-ground parts of the Strelitzia plants. He applied poison to their stumps when he cut them. No new shoots appeared for eight months. When new shoots did appear, he applied poison to them.

15 According to the Applicants' affidavit, following removal of the above-ground parts of the Strelitzia plants in April 2010, new sprouts appeared and were brought to the attention of the Respondent in the ensuing months, though no action appeared to be taken.

16 The Respondent stated that he received no such notification from the Applicants until they delivered a written claim in February 2011 requesting removal of Strelitzia stumps and compensation for damage.

17 According to the Applicants' verbal evidence, the extent of damage to the wall could be seen to reach its peak around February 2011.

18 The Respondent claims that he then began to dig the stumps out in March 2011. This did not occur in a single event but was rather a process that continued into April 2011. The process was stayed during overseas travel, and then resumed in August 2011.

19 In March 2011 the Applicants retained Mr Nathan Wills, a horticulturist. Mr Wills' brief report of 10 March 2011 identified roots found in the cracked retaining wall as being from the Strelitzia plants.

20 In March 2011 the Applicants also retained the services of Mr Peter O'Neil of P & D Pty Ltd, a licenced builder, to provide a report on the retaining wall. Mr O'Neill concluded that the retaining wall had been constructed in accordance with relevant standards. He found that damage to the wall, including horizontal bending, vertical displacement and shearing of masonry units and joints, was due to lateral forces exerted on the wall adjacent to the Strelitzia plants.

21 On 11 July 2011 the Applicants applied to the Court to have the matter heard under Part 2 of the Act.

22 The Respondent undertook further digging and, presumably, removal of stump or root matter in August 2011.

23 On 8 October 2011 Mr Mitchell Brown, a Level 3 Horticulturist who has provided expert evidence for the Applicants, conducted some exploratory digging on the Respondent's land where the Strelitzia trees had grown. He collected samples of roots that he states were Strelitzia roots and were alive. He described these samples as being collected from a root ball.

24 The Respondent and his son subsequently undertook some further digging to "ensure that remaining roots were removed."

Onsite view

25 The hearing took place onsite, beginning on the Applicants' property, where the damaged wall was inspected.

26 The wall is two bricks wide and runs parallel to the boundary. It is approximately ten metres long. Approximately halfway along its length it has a vertical crack, is visibly pushed outwards away from the boundary at its top and has loose bricks at the top.

27 There is further cracking at the join to the north where the wall steps out from the boundary. This too is consistent with the wall being pushed away from the boundary.

28 Vertical posts supporting the pergola roof are attached to the top of the wall. The two posts closest to the damage in the wall have been displaced slightly. Acrow props have been installed to support the pergola roof.

29 Two wooden supports had been inserted against the retaining wall. The Applicants stated that this was to prevent the wall falling as this may cause injury to their grandson. The application did not include a claim that the trees were likely to cause injury and the Court was not asked to consider this.

30 Dead roots at the surface of the raised garden bed behind the retaining wall were said by the Applicants to be from the Strelitzia plants. Mr Brown's verbal evidence supported this claim. The Applicants stated that there were more roots still present at some depth in the soil.

31 The Applicants pointed out several new shoots in the garden bed between the retaining wall and the boundary fence. They claimed that these were Strelitzia shoots from the roots that remained in the ground. Later inspection of the Respondent's property revealed an Aspidistra plant adjacent to the boundary and the Applicants conceded that at least some of the shoots they had indicated on their property were probably from the Aspidistra.

32 While the Applicants have noticed new shoots growing on the Respondent's land since the two Strelitzia plants were removed, there have been no other shoots appear on their own land in that time, apart from the few present at the hearing and described in the preceding paragraph.

33 The Applicants pointed out that the boundary fence has been displaced and contend that this, too, was caused by the Strelitzia plants. However they stated that they intend to repair this themselves and make no claim regarding the boundary fence.

34 The hearing then moved to the Respondent's property. Nothing remains of the trees above ground.

35 The Respondent had excavated a trench along the boundary for a length of approximately 3 m to a depth of approximately 400 mm. The Respondent pointed out that any root matter of the Strelitzia plants within the trench had now been removed and that no root matter could be seen in the soil at the bottom of the trench.

36 Mr Brown, in his verbal evidence, suggested that roots of trees such as the Strelitzias could grow down to a depth of 10 metres. This may be possible in some soils but seems most unlikely here, as there would be little oxygen at that depth.

37 The Respondent indicated where the two Strelitzia plants had grown. It appeared that, at ground level, the Strelitzia plants were no further than a metre from the damaged retaining wall.

Jurisdictional matters

38 There are several jurisdictional questions raised by the application.

39 Firstly, s 7 of the Act states:

"An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land."

40 A tree is defined at s 3(1) of the Act:

" tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations."

41 Although Strelitzia nicolai is a monocotyledon, it is a perennial plant with a wooden stem and resembles a tree in form and size. I am satisfied that the Strelitzia nicolai that were on the Respondent's land were 'trees' according to the definition in s 3(1) of the Act.

42 Although the trees have been removed, and s 7 of the Act uses the present tense when it refers to a tree that "is situated on adjoining land", s 4(4) of the Act states:

"Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred."

43 Section 34 of the Interpretation Act 1987 refers to the range of extrinsic material the Court may consider to assist with the interpretation of a provision of an Act. To assist with interpretation of s 4(4) of the Trees (Disputes Between Neighbours) Act 2006 , I turn to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Review) of November 2009, which was referred to in the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821].

44 The Review outlines the background to the 2010 amendments to the Act. Submissions were received and discussed as part of the Review, which made recommendations to improve the operation of the Act. The Government accepted all of the recommendations.

45 The Review included the following discussion regarding the use of the present tense in s 7 of the Act.

"The consequence of this drafting is that a person who would otherwise be liable for damage caused by a tree on their land can avoid having to pay any compensation or repair costs, by acting promptly to completely remove the tree from their land. In such cases, the neighbour who has suffered the damage would only have the option of suing in nuisance to attempt to recover their losses.

A number of submissions suggested that the Act be amended to allow the Court jurisdiction where the tree has been wholly removed.

It is preferable for all cases of damage caused by trees in eligible zonings to be dealt with by the LEC under the Act, rather than matters being heard under the common law in other Courts simply because the tree in question has been wholly removed."

46 Following on from this, Recommendation 4 of the Review was:

"That the Act be amended so that its procedures can still be used in cases where the tree in question has been wholly removed."

47 As the discussion surrounding this point was with regard to the tense used in s 7, and s 7 refers to the circumstances in which a land owner may apply to the Court, it follows that the intent of the 2010 amendment is that an application can be made for a tree that has been removed. The use of the words "gave rise to" in s 4 (4) do not, on my reading, preclude this interpretation.

48 Further wording in s 4(4) of the Act also suggests this interpretation, when it states that a tree is still taken to be on the land if it was situated "on the land immediately before the damage or injury occurred."

49 The application before the Court was made on 11 July 2011. Both parties agree that the trees were removed to ground level or thereabouts in April 2010 but that their stumps were left in the ground. What constitutes a tree has been discussed in Robson v Leischke [2008] NSWLEC 152, where Preston CJ established at [147] that:

"The concept of a 'tree' is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land. The concept of a tree also includes a tree that has died."

50 Without the 2010 amendment discussed above, the Court would need to consider the amount of root material that was left in the ground and whether or not this would be defined as a tree as discussed by Preston CJ in Robson . It may well be that the root ball described by Mr Brown as still being present on the Respondent's land in October 2011 could be included within the concept of a 'tree'. However, as my interpretation of s 4(4) gives the Court jurisdiction over the removed trees, this is not something I need to consider here.

51 The Court must not make an order under Part 2 of the Act, according to s 10 of the Act, 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.

52 Reports provided by the Applicants state that there were a large number of Strelitzia roots close to the wall (Mr Brown's report) and that growth of roots or of a root ball had exerted lateral forces onto the wall and caused damage (Mr O'Neill's report).

53 As Craig J held in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 the Court requires no less than a "preponderance of probability" that the causal nexus exists.

54 Considering the following points:

• the Strelitzia plants were no more than a metre from the retaining wall;
• they were significantly closer than any other trees or vegetation with large root systems;
• the Strelitzia plants were adjacent to the point along the wall where damage is most pronounced;
• there is clear evidence that a large amount of Strelitzia roots were in the soil behind the wall;

I am satisfied that the causal nexus exists and that at least one of the Strelitzia plants on the Respondent's property caused damage to the retaining wall.

55 There was no evidence to suggest that what remains of the trees is currently causing damage to the retaining wall. Nor do I consider that, even should shoots grow from remaining roots, they are likely to cause any further damage in the near future, for which I see no reason to differ from the principle in Yang v Scerri [2007] NSWLEC 592 that 12 months is an appropriate period to consider.

Discretionary matters to be considered

56 As one of the tests in s 10(2)(a) is satisfied I can proceed to the matters to be considered in s 12 of the Act before making any orders such as those outlined in s 9 of the Act. The matters in s 12 are set out below.

(a) The location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises.

(b) Whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained.

(b1) Whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003 , require approval under that Act.

(b2) The impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree.

(b3) Any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated.

(c) Whether the tree has any historical, cultural, social or scientific value.

(d) Any contribution of the tree to the local ecosystem and biodiversity.

(e) Any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned.

(f) The intrinsic value of the tree to public amenity.

(g) Any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned.

(h) If the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage.

(i) If the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury.

(j) Such other matters as the Court considers relevant in the circumstances of the case.

57 My consideration of each of these matters follows.

(a) The trees were adjacent to the boundary and relatively close to the Applicants' premises.

(b) Interference with any part of the Strelitzia plants that remains would not require consent or authority.

(b1) Interference with any part of the trees that remains would not require approval under the Native Vegetation Act 2003 .

(b2) The trees cannot be pruned as they have been removed.

(b3) The trees, having been removed, make no contribution to the land on which they were situated.

(c) The trees do not have any historical or other value.

(d) The trees, having been removed, make no contribution to the local ecosystem and biodiversity.

(e) The trees, having been removed, make no contribution to the natural landscape and scenic value of any land.

(f) The trees, having been removed, have no value to public amenity.

(g) The trees make no such impact on soil stability, the water table or other natural features.

(h) When the Applicants first brought the Respondent's attention to the damaged retaining wall, they suggested that the problem was due to roots of a tree, which was removed shortly afterwards. It was then almost two years, during which period, according to the Applicants, the damage worsened, before the Respondent was informed that there was any further or ongoing damage. The Respondent was presumably under the impression during this period that he had dealt with the issue.

As Moore C and Thyer AC, in Osborne v Hook [2008] NSWLEC 1231, adopted the approach of Preston CJ in Robson at [207], I am satisfied that the same approach is relevant here:

"... considerations that arise in the tort of nuisance concerning fault, the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury."

The Respondent took action to remove the Strelitzia plants soon after the damage was again brought to his attention in 2010. I believe that, like any reasonable person without specific horticultural training, the Respondent believed that cutting the trees to ground level and applying poison to the stumps would prevent the trees growing further.

It should also be considered here that the Respondent did not plant the tree; nor did he take any action that directly caused the damage.

The Respondent suggested that forces exerted on the wall by the posts supporting the pergola roof may have contributed to the damage. However, in my view the forces would be vertical and would not cause the outward movement of the wall.

(i) Risk of injury was not included in the application.

(j) There were no other matters I considered to be relevant.

Conclusions

58 I am in no doubt that a tree on the Respondent's land caused damage to the Applicants' retaining wall. However there was a period of at least two years where the Respondent believed, as far as I can tell, that he had dealt with the problem. The Applicants must take some responsibility for not keeping the Respondent more informed of the damage on their property.

59 I return to the orders sought by the Applicants. With regard to the first order, it appears that there is insufficient root matter remaining on the Respondent's land to cause further damage or to warrant using an excavator or stump-grinder, as suggested by the Applicants, for its removal. When the Applicants repair the retaining wall, any root matter in the soil on their land can be removed at the same time, as I see it, without any undue burden.

60 With regard to compensation for damage to the retaining wall, I find it unreasonable that the Respondent should pay for all the works when he was unaware of the worsening damage for some period and, when made aware of it, took reasonable action to prevent further damage. In my view, it would be reasonable for the Respondent to contribute no more than 30% of the repair costs. No evidence was given that new soil or Acrow props were required, so those parts of the compensation claim will be dismissed.

61 Regarding the fourth order sought by the Applicants, Commissioners of the Court do not have the power to award costs. If the Applicants wish to pursue this matter they must do so through a Notice of Motion to be heard and determined by a Judge of the Court.

Orders

62 Considering all of the foregoing, the orders of the Court are:

(1) Within 30 days of the dates of these orders, the Applicants are to obtain and provide to the Respondent three quotes for repairing the damaged section of the retaining wall, which is approximately 10 metres in length, to a similar standard and using similar material as the existing retaining wall.

(2) The Respondent has 7 days from receipt of quotes from the Applicant to respond to the Applicant with their choice of contractor otherwise the Applicant chooses the contractor.

(3) The repair works to the retaining wall are to be completed within 3 months of the date of these orders otherwise order 4 lapses.

(4) The Respondent is to reimburse the Applicants 30% of the cost of the works in order 1 within 21 days of the receipt of a tax invoice for the completed works.

D Galwey

Acting Commissioner of the Court

Decision last updated: 13 December 2011