Carey v Pattinson [2020] NSWLEC 1515

Land and Environment Court New South Wales

Medium Neutral Citation: Carey v Pattinson [2020] NSWLEC 1515 Hearing dates: 03 September 2020 Date of orders: 03 September 2020 Decision date: 03 September 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to retaining wall – excavation required Legislation Cited: Conveyancing Act 1919 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005 Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Category: Principal judgment Parties: Michael Carey (First Applicant) Kelly Carey (Second Applicant) Leanne Pattinson (First Respondent) Adam Pattinson (Second Respondent) Representation: Counsel: M Carey (Litigant in person) (First Applicant) K Carey (Litigant in person) (Second Applicant) A Pattinson (Litigant in person) (Second Respondent) File Number(s): 2020/23050 Publication restriction: No

Judgment

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

Background 1. ACTING COMMISSIONER: Mr and Mrs Carey (the applicants) and Mr and Mrs Pattinson (the respondents), share a side boundary between their properties on fairly steeply sloping land in Austinmer. The applicants' property is located higher up the slope, and a retaining wall, with a fence on top, separates the properties. 2. Mr and Mrs Pattinson purchased and occupied their property in 1996, at which point a Cinnamomum camphora (Camphor laurel) (the tree) was already well established in the rear of their side yard. Its trunk base is about two to three metres from the common boundary, and about one metre lower than the base of the retaining wall. 3. The applicants, who occupied their property about seven years ago, became aware of cracking render, and separation between the side of their concrete slab driveway and the retaining wall, in 2018, and commissioned a report from engineering specialists. As noted by the engineer, "in layman's terms, you are concerned that the retaining wall is falling over towards" the respondents' property. Mr and Mrs Carey were the second owners of their house, having purchased it from an owner-builder, who also constructed the retaining wall. 4. This initial report, from Mr Anthony Barthelmess, of Rienco Consulting, dated 3 August, 2018 (Exhibit A), noted slight rotation in the wall, which was "not immediate cause for concern", with four potential causes: 1. Shrinking or swelling of the foundation material, in both yards, which appears to be loose clay – exacerbated by unseasonably dry conditions. 2. Minor movement of the informal retaining wall in the rear yard of the respondents' property. The footing of the boundary wall appears to be in the zone of influence of the respondents' wall, and as such any movement in their wall will affect the stability of your wall. 3. The large tree adjacent to the wall in the respondents' yard, the dense, shallow root system of which may be impacting on the applicants' retaining wall, and subsequently the boundary wall, physically, and through exacerbation of reduction in soil moisture. 4. Possible swelling of backfill material used under the applicants' driveway. 1. With permission, Rienco Consulting accessed the respondents' yard to inspect the wall on 22 August 2018, and provided a second report (Exhibit B) dated 6 December 2018, after a period of three months' higher than average rainfall. 2. Based on negligible impact from this increased rainfall, the shrinking or swelling of loose clay foundation material (cause 'a' in the initial report) was excluded, and responsibility for the retaining wall displacement was subsequently focussed on the tree, with removal recommended. 3. In August 2019, the applicants provided the respondents with a copy of Exhibit B, in response to which the Pattinson's questioned "why an inspection of the foundations of the boundary wall was not the main focus". 4. Rienco Consulting was again commissioned for their opinion, which was provided on 10 September, 2019 (Exhibit C). They stressed that their focus, during two site inspections, was primarily on the wall. The report also suggested that the tree had grown extensively since the retaining wall was installed, and that, in this context, retention of the tree constituted a removal of support to the Pattinson's land, which, based on s 177 of the Conveyancing Act 1919, breached the respondents' duty of care owed to the applicants. 5. On 22 September, 2019, the applicants emailed the respondents, proposing four options of: tree removal, an engineering review of the wall at the respondents' expense, Community Justice Centre mediation, or an application under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). 6. The respondents advised that they were seeking legal advice, and after a period following an unanswered email, Mr and Mrs Carey submitted an application, pursuant to s 7 of Part 2 of the Act, seeking removal of the Camphor laurel tree located in the adjacent neighbouring property.