Land and Environment Court New South Wales Medium Neutral Citation: Jones v Moser [2020] NSWLEC 1399 Hearing dates: 29 May 2020 Date of orders: 1 September 2020 and amended on 18 December 2020 Decision date: 01 September 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [68] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a retaining wall – whether the retaining wall is on the common boundary – who is responsible for the retaining wall – whether the wall must be replaced – whether consent is required to replace the wall – whether the tree must be removed – whether a paling fence must be replaced – who should pay the costs of the works Legislation Cited: Conveyancing Act 1919 (NSW) Dividing Fences Act 1991 (NSW) Environmental Planning and Assessment Act 1979 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Lazarus and Anor v Harry [2009] NSWLEC 1055 St Clair v Kilham [2018] NSWLEC 1071 Texts Cited: Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work Warringah Council Development Control Plan 2011 Category: Principal judgment Parties: Christopher David Jones (First Applicant) Samantha Jane Jones (Second Applicant) Carl Ulrich Mathias Moser (First Respondent) Clare Marie Morrison (Second Respondent) Representation: G Christmas (Solicitor) (Applicants) C Moser (Litigant in person) (First Respondent) C Morrison (Litigant in person) (Second Respondent) Solicitors: Apex Planning and Environment Law (Applicants) File Number(s): 2020/40586 Publication restriction: No Judgment Background to the application 1. A retaining wall at the rear of the Belrose property belonging to Samantha and Christopher Jones ('the applicants') is in such poor condition that it requires replacement. Near the wall, on the neighbouring property belonging to Clare Morrison and Carl Moser ('the respondents'), stands a cypress tree ('the tree'). The retaining wall supports the higher land of the respondents' property. The applicants wish to demolish and replace the retaining wall. 2. Some four or five years ago, the applicants contacted the respondents requesting they contribute or pay for the replacement of the retaining wall. Since then, they have asked the respondents, without success, to pay for the works in full or in part, and to remove the tree. 3. Between 2015 and February 2020 the parties had numerous communications regarding the retaining wall, the paling fence above the retaining wall, the nearby tree on the respondents' property, and related issues. Each party's version of the history of those communications indicates their tone was less than friendly – accusations of trespass and threats, and so on. This is not unusual in neighbourhood tree disputes. 4. In 2018 the applicants made an application to the NSW Civil and Administrative Tribunal (NCAT) for dividing fence orders, but withdrew during that process. Mr Christmas, representing the applicants, explained that this was due to the fact that the applicants realised they required orders for the removal of the tree on their neighbours' land, and that the Trees (Disputes Between Neighbours Act) 2006 (NSW) ('the Trees Act') provided the more appropriate jurisdiction to resolve all elements of the dispute. 5. In February 2020 the applicants applied to the Land and Environment Court, pursuant to s 7 of the Trees Act, seeking the following orders (as written, other than removal of property identification): "(1) Within 28 days of the date of these orders, the Respondents are to engage and pay for an arborist with a minimum AQF Level 3 qualification in Arboriculture to remove the Golden Hinoki Cypress (Chamaecyparis obtusa 'Crippsii') (identified as T1 on the plan annexed to the Tree Dispute Claim Details), located adjacent to the western boundary of [the Respondents' property] to ground level and to poison the stump. (2) Within 28 days of the date of these orders the Applicants are to make an application to obtain development consent by lodging a development application for the demolition of the entire existing concrete blockwork retaining wall and construction of a new footing and retaining wall (in accordance with the drawing titled "Boundary Retaining Wall", numbered SK02, dated 9/2/2018 and prepared by Northern Beaches Consulting Engineers Pty Ltd and the drawing titled "Proposed Retaining Wall - Site Plan & Section", numbered DA01 A, dated 25/8/2019 and prepared by SB Design, annexed to the Tree Dispute Claim Details) on the common boundary between [the Respondents' property and the Applicants' property]. Within 28 days of obtaining development consent the Applicants are to engage a principal certifier and obtain a construction certificate for the works approved under the development consent. The Respondents are to provide and not withhold owners' consent for any applications or forms required to obtain development consent and a construction certificate for the above works. In the event that a Development Control Order under Schedule 5 of the Environmental Planning and Assessment Act 1979 is issued by Northern Beaches Council with the effect of requiring the demolition of the entire existing concrete blockwork retaining wall and construction of a new footing and retaining wall on the common boundary between [the Respondents' property and the Applicants' property], this Order (2) has no force or effect. (3) Within 28 days of the date of obtaining a construction certificate or being issued a Development Control Order by Northern Beaches Council with the effect of requiring the replacement of the entire retaining wall, whichever occurs first, the Applicants and the Respondents are to: (a) Each obtain two itemised quotes from licensed and suitably experienced building contractors, with all appropriate insurances, for the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.8m high lapped and capped treated pine fence above, built on the surveyed boundary in accordance with the drawing titled "Boundary Retaining Wall", numbered SK02, dated 9/2/2018 and prepared by Northern Beaches Consulting Engineers Pty Ltd and the drawing titled "Proposed Retaining Wall -Site Plan & Section" numbered DA01 A dated 25/8/2019 and prepared by SB Design, annexed to the Tree Dispute Claim Details. The wall and footing must be engineered to comply with all standards for a concrete block retaining wall and footing in this situation; and (b) Exchange quotes and agree on the appropriate contractor. If no agreement can be reached, the cheapest quote must be selected. Should it be required, any additional work is to be agreed and will be at the expense of the party who requires it. (4) The Applicants and the Respondents are to provide all reasonable access to their respective properties for the purpose of quoting, on reasonable notice. (5) The Applicants are to engage and pay for the nominated contractor and are to pay for any costs ancillary to the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.8m high lapped and capped treated pine fence above. (6) The works in Order 3 above are to be completed within 16 weeks of the date of engagement of the nominated contractor. (7) Within 21 days of the receipt of an itemised costs account and receipts for the application(s) in Order 2 above, the Respondents are to reimburse the Applicants 75% of all costs associated with obtaining development consent and a construction certificate. (8) Within 21 days of the receipt of a tax invoice for the completed works in accordance with Order 3 above, the Respondents are to reimburse the Applicants 75% of the cost as determined in accordance with Order 5 above. (9) Within 21 days of the receipt of an itemised costs account and receipts for all costs ancillary to the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.8m high lapped and capped treated pine fence above, including but not limited to a boundary survey and peg out (if required), relocation of in-ground services (if required), removal of contaminated fill or asbestos (if required), engineering inspections (if required), stump grinding/removal (if required), critical stage inspections and an occupation certificate (if required), the Respondents are to reimburse the Applicants 75% of all ancillary costs." 1. The respondents refute that the applicants' proposed orders can legally be carried out. They propose the following alternative orders (as written): "(1) That the tree be retained. The tree is healthy and stable as well as significant for the Respondents' property and the surrounding area. The Respondents' arborist recommends (see Appendix 19), that a further investigation of the root buttress of the tree be undertaken by a qualified arboriculturist (AQF5) to establish the number of 1st order roots that are present in the root buttress of this tree. The reason for establishing this fact is that if there are a large number of tree roots that are not impacting the wall it would be acceptable to remove one root if it were proven to be causing unacceptable loads on the retaining wall. The root could be removed effectively up to 10 cm away from the retaining wall and this would reduce the possibility of further damage caused by the tree. As a past senior property manager who has had many years of experience working for public housing authorities in both South Australia and New South Wales, the Respondent (Ms Morrison) also suggests that the tree roots could be reinforced with rust proof, heavy duty star stakes or a cage (concreted in place). (2) That the Respondents are awarded costs that were accumulated due to the Applicants' actions. Costs are listed in Appendix 11 and include legal costs, arborist report costs and compensation for time spent on this matter. Given the inordinate amount of time the Respondents have spent on dealing with this matter, the total of $12,382.53 seems to be fair and reasonable to the Respondents." The hearing and evidence 1. With COVID-19 restrictions preventing onsite hearings at the time, the parties agreed to the matter proceeding via telephone. The parties had filed extensive material prior to the hearing, such that I was of the opinion that neither the hearing nor this decision would suffer from the lack of an onsite view. The hearing took place on 29 May 2020. 2. The applicants' evidence included: a survey plan by Ian Wicks, of Sydney Surveyors; a report by arboricultural consultant Catriona Mackenzie, of Urban Forestry Australia; and a report by engineer Luke Gerkens, of Northern Beaches Consulting Engineers. The applicants also tendered an amended version of the Wicks survey plan that showed the corrected location of a third-party property boundary. The correction assisted the Court by showing a state of affairs that would otherwise have required further explanation during the hearing. The correction did not alter the location of the common boundary shared by the parties, nor of the retaining wall or paling fence. The correction did not disadvantage the respondents and did not affect the outcome of this decision. I accepted the additional evidence. 3. The respondents' evidence included: copies of survey reports by Clark Dowdle & Associates, Sydney Surveyors, and Australia Private Surveyors; a report by arboricultural consultant Russell Kingdom, of Advanced Treescape Consulting, as well as his later 'letter of advice'; a report by engineer Geoffrey Keighran, of Keighran and Associates Consulting Structural and Civil Engineers; along with various other reports and documents. The three survey reports were obtained by the respondents but were not prepared specifically for this hearing. 4. After it was confirmed that the experts' written opinions had not changed, there was no need for them to give oral evidence during the hearing. Framework for this decision 1. The dispute's history, as presented by both parties, demonstrates that the applicants have made reasonable effort to reach agreement (s 10(1)(a) of the Trees Act). The applicants have given the required notice of the application (s 10(1)(b)). The respondents' cypress tree is on land adjoining the applicants' land, and the applicants seek orders to remedy damage they say the tree has caused to their property (s 7). If I find that the tree has caused damage to the applicants' property (s 10(2)(a)), I can make orders of the nature described at s 9, after considering the matters at s 12 of the Trees Act. The applicants' submissions 1. The applicants submitted that the retaining wall is on the common boundary, as shown on the Wicks survey plan of August 2018. The wall was most likely constructed around the time of subdivision in 1969 and was shown on a 1972 survey plan. The wall benefits both their own property and the respondents' property. They have owned their property since 2003; the respondents have occupied their property since 2009. 2. The applicants relied on the engineering evidence of Mr Gerkens, whose report shows the wall to be most displaced near the tree, which is only some 300 mm from the wall. Mr Gerkens found the wall to be in unacceptable condition, posing a risk of failure, and recommended it be demolished and reconstructed for its entire length. The applicants pointed out that the engineering report of Mr Keighran, prepared not for this hearing but in response to an earlier insurance claim, also concluded that the entire retaining wall needed to be demolished and reconstructed with a new footing. 3. The applicants refuted a claim by the respondents that they have contributed to the wall's condition by paving, at a lower level, a section of their property near the wall. Rather than paving, they said that area contained a concrete slab, which has been there since their dwelling was constructed. 4. The applicants argued that the respondents' cypress tree has clearly damaged the wall, even if the wall's condition is also due to its age and inadequate construction. The wall cannot be replaced without removing the tree. Due to its inclusion in a list of exempt species, the tree would not require consent from Northern Beaches Council ('Council'). They asserted that the cypress tree provides little benefit to the environment or to public amenity. Any privacy it provides could be readily replaced. They argued that any values the tree may have should not outweigh the need to replace the retaining wall. 5. The applicants found unsuitable the suggestion in Mr Kingdom's letter of April 2020 that further root mapping was required. They stated that the evidence already shows the tree has contributed to damage, even if other factors have also contributed. Retaining the tree would not be possible if the wall is to be replaced in the same location, as it should be. 6. The applicants refuted the respondents' claim that a replacement wall could not be built in the same location owing to its proximity to an easement on the respondents' land. Mr Christmas pointed out that the works are not prohibited but, due to the easement's proximity, the works would not be exempt works, so Council's consent would be required. The issue of consent is discussed further below. The respondents' submissions 1. The respondents stated that the retaining wall is on the applicants' land, as shown on survey plans. Therefore the retaining wall is entirely the applicants' issue, to be repaired at their expense. 2. Further, they argued that the paling fence, which is above and slightly east of the wall, and which they believe is on the common boundary, does not require repair, so if the applicants damage the fence while doing retaining wall works they must also pay for its reinstatement. They stated that, if the fence is replaced due to works, its current height of 1.5 metres should be maintained, rather than 1.8 metres as proposed by the applicants. 3. The respondents expressed the view that their tree has not caused damage to the retaining wall, and so it does not need to be removed to enable the retaining wall to be repaired or replaced. According to them, the wall is in poor condition for its entire length, not just near the tree. They wanted the opportunity to carry out some root investigation, as recommended by Mr Kingdom. 4. The respondents submitted that the applicants' vines growing on the fence have contributed to damage. 5. The respondents agreed that the wall needs to be replaced, but said it cannot be replaced in the same location due to restrictions associated with the easement on their land. Findings The tree has damaged the wall 1. The applicants obtained a report from Luke Gerkens of Northern Beaches Consulting Engineers, dated 21 March 2019. Mr Gerkens attended the property in October 2018 to make more detailed observations of the retaining wall, having also inspected the wall earlier in January 2018. Mr Gerkens described (on page 2 of his report) the wall as "…essentially 140 concrete blockwork on what appears to be a masonry footing (photo 5). The blocks are alternately core filled every 800mm centres (400mm filled, 400mm hollow). The wall varies in height between 1000mm and 1400mm, becoming higher towards the north." 1. Mr Gerkens noted the degree of displacement along the top of the wall. The deflection measured at the top of the wall adjacent to the cypress tree was 115 mm, while displacement measurements 2 metres to the south and north were 60 mm and 80 mm respectively. Further to the south the measurements decreased, which Mr Gerkens attributed to the wall's lower height there and the absence of other factors affecting the wall. Further to the north the displacement measurements ranged from ~50 mm to >120 mm. Mr Gerkens put this down to the wall's greater height to the north, and the influence of a "…neighbouring shed structure surcharging the wall…" (on page 4), although no such shed can be seen on any aerial images or plans of the properties. 2. Mr Gerkens noted vertical wall cracks some 400 mm either side of the tree's location and found (on page 3) the pattern of cracking was consistent with "… shearing action as a result of the tree root ball surcharge." 3. After the respondents were first notified of the damage, they contacted their home insurer. Their insurer engaged Geoffrey Keighran of Keighran and Associates, consulting structural and civil engineers, to assess and report on the wall. In his report of June 2016 (Exhibit 1, Appendix 4), Mr Keighran found that the wall's condition was (on page 3) "…a consequence of the wall being structurally inadequate to support the lateral loading of the retained earth, fence and tree." He continued: "The additional damage near the midlength of the wall has been caused by a combination of the following: (i) the additional lateral loading of the pressure of the roots of the tree; and (ii) the increased height of the wall (and exposure of the bricks below the base of the wall) due to the paved area on [the applicants' property] being constructed at a lower level than the adjacent area of the rear yard. We understand that the owners of [the applicants' property] reported that the damage to the wall increased after recent high winds. It is likely that this is the case because the wind would have caused lateral loading on the fence and the tree (and onto the wall) and also possibly some impact of the base of the tree onto the wall (as the tree "rocked" in the wind). However, as previously stated, we consider that most of the lean in the wall is long-term." 1. Although the respondents alleged that construction of the applicants' paved area caused the damage to the wall near the cypress tree, there is no evidence of this. It is mentioned in Mr Keighran's report but, as for many of his opinions, is unsupported by any investigations or reasoning to support this notion. 2. Both Mr Keighran and Mr Gerkens shared the following conclusion: the tree has contributed to the wall's condition. 3. I am satisfied, based on photographs, the engineering evidence, and statements of both the applicants and respondents, that the respondents' cypress tree has damaged the retaining wall. 4. Whether the wall belongs to the applicants, or is on the boundary with its ownership shared by the respondents and applicants, the wall is at least partly the property of the applicants. Therefore the jurisdiction under s 10(2)(a) of the Trees Act is enlivened and the Court can make orders as it sees fit to remedy, restrain or prevent damage (s 9). 5. Relevant questions to be considered when determining appropriate orders are: * Does the wall need replacing? And if so, who should pay? * Does the fence need replacing? And if so, who should pay? * Does the tree need to be removed? And if so, who should pay? 1. In answering these questions, I have considered all matters at s 12 of the Trees Act and discuss them below where relevant. The wall needs replacing 1. Mr Gerkens found that the retaining wall did not meet relevant current standards and that it had not been designed for the loads it was experiencing. He concluded that there was a risk of the wall overturning. He recommended that the retaining wall should be demolished and rebuilt for its entire length. 2. Mr Keighran also concluded that the damage could only be repaired by demolishing and reconstructing the wall, with the new wall designed by a structural engineer. 3. Both Mr Keighran and Mr Gerkens shared the following conclusion: the retaining wall needs to be demolished and replaced with a new wall that is properly designed for the conditions. 4. The respondents submitted that the retaining wall cannot be replaced in its current location because doing so would require works within or adjacent to a stormwater easement on the respondents' property. They argued that the works must be at least one metre from this registered easement, so any new wall must be at least one metre away from the boundary. According to the respondents, cl 2.30(f) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the 'SEPP') prevents a retaining wall being either more than 600 mm high or located less than 1 metre from any registered easement, sewer main or water main. 5. Mr Christmas pointed out that the SEPP clause referred to above does not prevent such works, rather it stipulates that they are not exempt works and therefore a permit is required from Northern Beaches Council for the works. Mr Christmas went further, saying that no matter what orders the Court makes, such consent for construction of a new retaining wall would still be required. In St Clair v Kilham [2018] NSWLEC 1071, I found that works to a boundary wall ordered under Part 2 of the Trees Act would not require the usual consent or authorisation. This was based on s 6 of the Trees Act, relying on s 6(3): 6 Authorisation of work or activity regulated by or under other Act (1) Except as provided by subsection (3), an order under Part 2 or 2A does not authorise or require a person: (a) to carry out any work or engage in any activity for which a consent or other authorisation must be obtained under any other Act without that consent or authorisation, or (b) to carry out any work or engage in any activity that is prohibited by or under any other Act. (2) Except as provided by subsection (3), a person may not apply to the Court for an order under Part 2 or 2A if the carrying out of the work or engagement in the activity concerned is prohibited by or under another Act. (3) An order under Part 2 or 2A has effect despite any requirement that would otherwise apply for a consent or other authorisation in relation to the tree concerned to be obtained under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. 1. Mr Christmas pointed out that s 6(3) gives effect to any order despite a requirement that would otherwise apply only for consent in relation to the tree. That is, consent that is required for other works, such as building works, would still be required despite any orders made under Pt 2 of the Trees Act. I accept his position to be the right one. This also explains why the Court's jurisdiction to make orders extends to (at s 9(2)(d)) requiring "…the making of an application to obtain any consent or other authorisation referred to in section 6(1)(a)". Replacing the retaining wall requires consent. As those works relate to the wall rather than the tree, consent would still be required despite orders from the Court (s 6(1)(a)). Although the works require consent, they are not 'prohibited' works referred to in s 6(1)(b) and s 6(2). 2. Mr Christmas acknowledged that, due to its height and its proximity to a registered easement, reconstruction of the retaining wall is not exempt from consent requirements. The orders proposed by the applicants therefore include orders for applying to Council for permission to carry out those works. 3. The wall is on the common boundary shared by the parties. According to s 13A of the Dividing Fences Act 1991 (NSW) (the 'Dividing Fences Act') the Court can make orders for the entire dividing fence where a tree that is subject to an application under the Trees Act has caused damage to a part of that dividing fence. At s 3 of the Dividing Fences Act, dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary, including a retaining wall if it provides "…any foundation or support necessary for the support and maintenance of the fence." The retaining wall along this common boundary is necessary for the support of the paling fence above it. 4. Both engineers were of the opinion that the wall needs replacing in its entirety, not just the section nearest the tree. As I have found that the tree has damaged the retaining wall, being a wall that forms part of the dividing fence, I will make orders for replacing the entire wall along this common boundary. Such orders will include an application for Council consent for the works. The cost of replacing the wall is to be shared equally 1. On my reading of their written response to the application (their 'Objection') the respondents have, since the outset, taken the position that the retaining wall is the applicants' problem. On page 14 of their written response (Exhibit 1) they say that two survey plans shown to them by staff at Northern Beaches Council "…clearly show that the retaining wall is in almost in its entirety on the land of…" the applicants. They repeated this assertion during their submissions. 2. The respondents included in their written response a copy of a letter of advice they received from Joerg Schmidt-Liermann of Schmidt-Liermann Lawyers (Exhibit 1, Appendix 7). That letter advised, amongst other matters, that (in my words): * a 2008 survey plan clearly indicates the paling fence runs along the common boundary; * the engineering report of Keighran and Associates of June 2016 confirms that the retaining wall is within the neighbouring (applicants') land; * the "…subject tree is protected in the Northern Beaches Council's applicable development control plan and its removal would be unlikely to receive support if an application was made for its removal in proceedings before the Land and Environment Court." (Exhibit 1, Appendix 7, page 2) 1. I note that the 2008 survey plan shows a short section of the paling fence at the northern end of the common boundary to be on the respondents' property, a short section of the fence at the common boundary's southern end on the applicant's property, with the position of the remainder of the paling fence not shown at all. 2. The Keighran and Associates engineering report of 2016 states that the "…survey indicates that the fence is between 120 mm to the west and 50 mm to the east of the western boundary of [the respondents' property]. Therefore, most (or all) of the thickness of the retaining wall is on the site of [the applicants' property]." (Exhibit 1, Appendix 4, page 2) 3. The above legal advice received by the respondents in 2018 only appears to have reinforced the views they already held, for they gave similar reasons for refusing mediation at the Community Justice Centre in 2016. Their unwillingness to consider alternative views has led to the applicants bringing this matter to Court. The respondents' request for a costs order seems unfounded, but is not one I need to consider as Commissioners of the Court do not have the power to award costs. 4. The respondents submitted that the responsibility and cost of replacing the retaining wall lie with the applicants, as it is on their land. Their primary source for this reasoning is the 2008 survey report of Clarke Dowdle and Associates (Exhibit 1, Appendix 2). That survey plan does not show the retaining wall, nor does it show most of the paling fence along this common boundary – it shows a short section of the paling fence at each of this boundary with, as already described, the fence on the respondents' land at its northern end, and on the applicants' land at its southern end. The paling fence has its footings in ground on the upper (eastern) side of the retaining wall. The respondents reasoned that, as the retaining wall is slightly west of the fence, and the fence is on the boundary, the retaining wall must be on the applicants' land. I note that the survey report includes the statement (with my emphasis in bold): "The subject land is partly enclosed by fencing, as shown on the attached sketch and except for fencing irregularities, there are no visible encroachments by or upon the subject land." To me, this survey report and its accompanying plan do not confirm that the retaining wall is located entirely within the applicants' land. 5. The 'Surveyor's Certificate' by Ian Wicks of Sydney Surveyors dated 21 August 2018 was commissioned by the applicants. It shows elements along this common boundary in greater detail. The survey plan shows the retaining wall straddling the common boundary for its entire length – that is, the wall's western face is to the west of the boundary and its eastern face is east of the boundary. The timber paling fence is shown to be on the respondents' land. Given the greater level of detail on this survey plan, I favour it over others presented by the parties. I find that the retaining wall is on the common boundary. However, this is not material to my decision, for the reasons given below. 6. Having reviewed all tendered survey reports and plans, I accept that the retaining wall is located on the common boundary shared by the applicants and the respondents. Even if, as Mr Keighran stated, most of the thickness of the retaining wall is on the applicants' land, I still find it is a boundary wall. It is not uncommon for boundary fences to be located slightly off the boundaries they mark. The 2008 survey report shows fences on the respondents' side boundaries to be located either within their own property or on a neighbouring property. On any of the available survey plans, the retaining wall is at least partly on the boundary, and for all intents and purposes acts as a boundary retaining wall. 7. The respondents surmised that the retaining wall was constructed when ground on the applicants' land was excavated many years ago to create a level landscape on that property. According to their reasoning, the wall benefited the owners of the applicants' land, so they are responsible for the wall. It does not matter that the original need for the wall may have been due to level changes on the applicants' land, evidence of which I cannot find in the tendered documents. The wall may equally have been required to support raised ground on the respondents' property. It would still be a boundary wall. 8. The respondents submitted that s 177 of the Conveyancing Act 1919 (NSW) puts the onus for the retaining wall's retention on the applicants. I include that section below. 177 Duty of care in relation to support for land (1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land. (2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land). (3) For the purposes of this section, supporting land includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed. (4) The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land. (5) The duty of care in relation to support for land may be excluded or modified by express agreement between a person on whom the duty lies and a person to whom the duty is owed. (6) Any such agreement— (a) has effect in relation to any agent of the person on whom the duty lies, and (b) has effect in relation to any successor in title of the supported land if the agreement is embodied in a registered easement for removal of support relating to that land. (7) The right to agree to the removal of the support provided by supporting land to supported land is a right of the kind that is capable of being created by an easement. (8) Any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land is abolished by this section. (9) Any action in negligence that is commenced after the commencement of this section in relation to the removal of the support provided by supporting land to supported land may be wholly or partly based on something that was done before the commencement of this section. However, this subsection does not operate to extend any period of limitation under the Limitation Act 1969. (10) This section extends to land and dealings under the Real Property Act 1900. (11) This section does not apply in relation to any proceedings that were commenced before the commencement of this section. (12) A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support. (13) This section binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 1. Pursuant to this section of the Conveyancing Act 1919, a person has a duty of care not to remove the support provided by supporting land to any other land (subs (2)), where supporting land includes that natural surface and subsoil of the land (subs (3)). The duty of care extends to a supporting building or structure (subs (4)) that "…has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land." 2. It is not clear on the evidence before me whether the retaining wall was constructed to retain the respondents' 'supported land' because their land was built up or because the applicants' was excavated. Accepting the respondents' argument that it was the latter, the retaining wall has replaced the support of the applicants' supporting land (subs 177(4) above) and the applicants' duty of care extends to the wall. However, on my reading of s 177 above, their duty of care is, specifically, not to do anything to remove the support provided by their supporting land, or in this case the retaining wall (subs (2)). If they proposed to only remove the retaining wall, and therefore its support, this may breach their duty of care. However they propose to replace a retaining wall that, on the engineering evidence, requires replacement in order to continue supporting the respondents' land. I find nothing in s 177 of the Conveyancing Act 1919 suggesting that the applicants should be responsible for the costs of replacing the boundary retaining wall. 3. The applicants submitted that the respondents should pay for 75% of the cost of replacing the retaining wall, based on the contribution of the respondents' tree to the wall's condition. Mr Christmas pointed out that Acting Commissioner Thyer apportioned 75% of retaining wall costs to the respondent in similar circumstances in Lazarus v Harry [2009] NSWLEC 1055 at [29]: "29 I find that the cost of repair of the retaining wall should be shared by the parties because it is a wall on the common boundary providing benefit to both parties. As much of the damage to the wall appears to be general dilapidation associated with its age and method of construction, I would ordinarily order that the parties share the cost of repair equally. However, I find that the tree has contributed to the damage, and on that basis would order that Ms Harry pay three quarters of the cost of repair of the wall." 1. The respondents submitted that they should not be responsible for repairing the wall when the entire wall was in such poor condition, not just the section near their tree. I accept that the wall is in poor condition for its entire length. This is the evidence of both engineers and is supported by photos and by the wall displacement measurements. Both engineers were of the opinion that the wall needs replacing in its entirety. Perhaps the impact of the cypress tree has hastened slightly the need for replacing the wall, but I find on the evidence before me that, if not now then soon, this retaining wall, which is the property of both parties, would require replacement. Each case before the Court must be determined on its own merits based on the findings that are often particular to that case. 2. If the applicants' vines growing on the fence have contributed to damage, they are unlikely to have caused significant damage to the block retaining wall. The presence of those vines does not affect the apportionment of costs. The vines will inevitably be removed when the retaining wall is replaced. 3. According to s 7(1) of the Dividing Fences Act: 7 Contribution as between adjoining owners—generally (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. Because the entire wall would need replacing now or in the near future, regardless of the damage caused by the tree, the parties shall share equally the costs associated with gaining consent for, and carrying out of, demolition of the existing retaining wall and construction of a new retaining wall that is fit for its purpose. Other than their suggested apportionment of costs, the applicants have proposed suitable orders for this process. The fence requires replacement 1. Footings of the paling fence that is above the wall are founded into soil adjacent to, and supported by, the wall. The new retaining wall requires drainage behind its eastern face. The works cannot be completed without removing and replacing the paling fence. Despite the applicants' proposed orders for the replacement fence to be 1.8 metres high, the respondents' preferred height of 1.5 metres maintains the existing nature of the fence. As there is no persuasive reason to increase the fence's height, it should remain at 1.5 metres. Orders will be made to remove the paling fence and to replace it with a similar fence. The cost of replacing the fence is to be shared equally 1. Although the fence may be located principally on the respondents' property, that appears to be a result of its footings being located in soil against the retaining wall. Together, the paling fence and the retaining wall form the dividing fence. I see no reason to apportion the cost of the fence's replacement other than equally between the parties as per costs for the retaining wall. The tree must be removed 1. Ms Mackenzie described the tree (report within Exhibit A) as a Chamaecyparis obtusa 'Crippsii' (Golden Hinoki Cypress) approximately 8 metres tall. She was of the opinion that, given its size and proximity to the retaining wall, the tree was exerting pressure on the wall. Ms Mackenzie stated that the base of the tree was only 300 mm from the wall, so considering the size of its stem it was originally planted only 500–600 mm from the wall. Ms Mackenzie concluded that the tree is likely now to rely on the wall for some support, so removal of the wall will destabilise the tree. Ms Mackenzie found that the tree had little amenity or landscape value and did not contribute any significant environmental benefits. Ms Mackenzie suggested some suitable replacement species. 2. Ms Mackenzie included an excerpt from Warringah Council Development Control Plan 2011 ('the 2011 DCP') that lists exempt species that are suitable for removal without consent. The list includes all commonly planted cypress (Cupressus species, Cupressocyparis species and Chamaecyparis species). 3. Mr Kingdom described the tree (Exhibit 1, Appendix 1) as a Cupressus macrocarpa 'Brunniana Aurea' (Brunnings Golden Cypress) 11 metres in height. He found the tree provided screening and shade and was a feature of the rear yard. Mr Kingdom recommended that a structural engineer investigate the wall. He concluded that the tree would not require removal if the wall was rebuilt. In his later letter of April 2020, Mr Kingdom recommended further investigation or a 'root mapping exercise' to assess impacts of the tree on the wall and to determine if a root could be removed to prevent damage. 4. Mr Kingdom stated (on page 6 of his initial report): "This tree is protected in Northern Beaches Council's Development Control Plan (DCP) – Tree Protection Policy." 5. I agree with Ms Mackenzie that the tree may now rely on the wall for some support, so the wall's removal may destabilise the tree. A temporary support system could possibly be installed during the retaining wall works to minimise the risk of tree failure. However, it is inevitable that the tree has roots against or close to the existing wall, and that some of these roots will need to be removed to construct a new wall with proper drainage on the respondents' side of the wall. Furthermore, if I am wrong, and the tree's roots are not found against the existing wall, the tree's proximity to the new wall will be likely to result in damage to the new wall in the foreseeable future. Neither party proposed a more complex engineering solution at a greater cost that would result in a retaining wall able to withstand the impacts of this tree's root growth. 6. The tree contributes some amenity to the respondents' property and neighbouring properties. Although its top can be seen from the street, it contributes little to public amenity. It contributes to overall canopy cover of the area, and to cooling and shading, but otherwise provides no particular environmental values. The reasons for removing the tree outweigh reasons for its retention. Based on either identification of its species, consent is not required for the tree's removal as it is an exempt species in the 2011 DCP. Orders will be made for the tree to be removed. As the tree could be removed without Council's consent, there would ordinarily be no opportunity for Council to include a permit condition for replacement planting, so I will not order any replacement planting. The cost of tree removal is to be shared equally 1. The principal reason for ordering tree removal is to facilitate the replacement of the retaining wall. It is difficult to see how the replacement wall could be constructed without damaging tree roots. As shown earlier, s 7(1) of the Dividing Fences Act states that adjoining owners are generally liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence. At s 3 of the Dividing Fences Act, fencing work includes the removal of vegetation along or on either side of the common boundary for the purpose of replacing or constructing the whole or part of a dividing fence. Tree removal costs, being part of the fencing work, will be shared equally by the parties. Nature of the orders 1. Following the findings above, orders will be made to remove the tree, to replace the retaining wall and fence along the common boundary, with the costs of all of these works shared equally by the parties. The orders will generally align with those proposed by the applicants, including the requirement for consent to be obtained for all works to the retaining wall. The orders differ from the applicants' proposed orders in their requirement for all costs to be shared equally, which also requires further quotes to be obtained for tree removal. Poisoning of the tree's stump is unnecessary. The height of the replacement paling fence will be 1.5 metres. The applicants are required to notify the owners of the property immediately to their south, as plans show the retaining wall abuts a wall that extends a short distance along the boundary they share with that neighbour. The parties are given liberty to relist should any issues arise that interfere with or prevent the carrying out of the orders. Orders 1. For the reasons given above, the Court orders that: 1. Within 14 days of the date of these orders, the Respondents and the Applicants are each to obtain two quotes from arborists with a minimum AQF Level 3 qualification and all appropriate insurances to remove to ground level the Respondents' cypress tree located adjacent to their western boundary. 2. Within 14 days of the date of these orders the Respondents and Applicants are to exchange quotes and agree on the appropriate contractor or, if no agreement can be reached, select the cheapest quote. 3. Within 28 days of the date of these orders, the Respondents are to engage and pay for the arborist selected in Order (2) to remove to ground level the Respondents' cypress tree located adjacent to their western boundary. These works must be carried out in accordance with the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work. 4. Within 14 days of receiving a copy of the receipted paid for the works in Order (3), the Applicants are to reimburse the Respondents 50% of the amount as quoted by the arborist selected in Order (2). 5. Within 28 days of the date of these orders the Applicants are to make an application to obtain development consent by lodging a development application for the demolition of the entire existing concrete blockwork retaining wall and construction of a new footing and retaining wall (in accordance with the drawing titled "Boundary Retaining Wall", numbered SK02, dated 9/02/2018 and prepared by Northern Beaches Consulting Engineers Pty Ltd and the drawing titled "Proposed Retaining Wall - Site Plan & Section", numbered DA01 A, dated 25/08/2019 and prepared by SB Design, annexed to the Tree Dispute Claim Details) on the common boundary between the Respondents' property and the Applicants' property. By 28 February 2021, the Applicants are to engage a principal certifier and obtain a construction certificate for the works approved under the development consent. The Respondents are to provide and not withhold owners' consent for any applications or forms required to obtain development consent and a construction certificate for the above works. In the event that a Development Control Order under Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) is issued by Northern Beaches Council with the effect of requiring the demolition of the entire existing concrete blockwork retaining wall and construction of a new footing and retaining wall on the common boundary between the Respondents' property and the Applicants' property, this Order (5) has no force or effect. 6. Within 28 days of the date of obtaining a construction certificate or being issued a Development Control Order by Northern Beaches Council with the effect of requiring the replacement of the entire retaining wall, whichever occurs first, the Applicants and the Respondents are to: 1. Each obtain two itemised quotes from licensed and suitably experienced building contractors, with all appropriate insurances, for the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.5-metre high lapped and capped treated pine fence above, built on the surveyed boundary in accordance with the drawing titled "Boundary Retaining Wall", numbered SK02, dated 9/02/2018 and prepared by Northern Beaches Consulting Engineers Pty Ltd and the drawing titled "Proposed Retaining Wall -Site Plan & Section" numbered DA01 A dated 25/08/2019 and prepared by SB Design, annexed to the Tree Dispute Claim Details. The wall and footing must be engineered to comply with all standards for a concrete block retaining wall and footing in this situation; and 2. Exchange quotes and agree on the appropriate contractor or, if no agreement can be reached, the cheapest quote must be selected. Should it be required, any additional work will be at the expense of the party who requires it. 1. On reasonable notice the Applicants and the Respondents are to provide all reasonable access to their respective properties for the purpose of quoting for all tree removal and wall and fencing works ordered above. 2. The Applicants are to engage and pay for the selected contractor in Order (6) and are to pay for any costs ancillary to the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.5-metre high lapped and capped treated pine fence above. 3. The works in Order (6) above are to be completed within 16 weeks of the date of engagement of the nominated contractor. 4. The Applicants are to give the owners of the property immediately to their south 14 days' notice of the works in Order (6). 5. Within 21 days of the receipt of an itemised costs account and receipts for the application(s) in Order (5) above, the Respondents are to reimburse the Applicants 50% of all costs associated with obtaining development consent and a construction certificate. 6. Within 21 days of the receipt of an itemised costs account and a paid tax invoice for the completed works in accordance with Order (6) the Respondents are to reimburse the Applicants 50% of the cost as determined in accordance with Order (8), including 50% of all costs ancillary to the demolition and rebuilding of the entire concrete blockwork boundary retaining wall and footings, with a 1.5-metre high lapped and capped treated pine fence above, including but not limited to a boundary survey and peg out (if required), relocation of in-ground services (if required), removal of contaminated fill or asbestos (if required), engineering inspections (if required), stump grinding/removal (if required), critical stage inspections and an occupation certificate (if required). 7. The parties are granted liberty to relist on 2 days' notice should any issues arise that interfere with or prevent the carrying out of these orders. ………………………………. D Galwey Acting Commissioner of the Court ********** Amendments 23 December 2020 - Order (5) of the orders made on 1 September 2020 amended (on 18 December 2020). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2020