Land and Environment Court New South Wales Medium Neutral Citation: Blue v Camilleri [2021] NSWLEC 1303 Hearing dates: 8 March 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [31] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage to a retaining wall – whether damage has been caused by the tree – whether previous orders would prevent investigation of damage Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12 Cases Cited: Blue v Camelleri [2007] NSWLEC 138 Texts Cited: Parramatta Development Control Plan 2011 Category: Principal judgment Parties: Jeanette Blue (Applicant) Frank Camilleri (First Respondent) Rose Camilleri (Second Respondent) Representation: M Blue (Agent) (Applicant) F Camilleri (Litigant in Person) (First Respondent) R Camilleri (Litigant in Person) (Second Respondent) File Number(s): 2020/319402 Publication restriction: No Judgment Background to the application 1. A Spotted Gum (Corymbia maculata) ('the tree') grows in the front garden of the Telopea property belonging to Frank and Rose Camilleri ('the respondents'), adjacent to the common boundary they share with Jeanette Blue ('the applicant'). 2. On Mrs Blue's property, close to the common boundary, a retaining wall along her driveway supports the higher land toward the Camilleris' property. At one end, the retaining wall is cracked. Mrs Blue's dwelling is set further forward than the Camilleris': it is less than 2 metres from the tree, whereas the Camilleris' dwelling is approximately 8 metres from the tree. At the front of Mrs Blue's dwelling is the main bedroom, with a garage beneath. 3. Mrs Blue has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the tree to be removed and for the damaged wall to be rectified. Relevant history 1. A long history of events, including an earlier application to the Court, have led to this application. A brief summary of this history is set out below. 2. The Camilleris' dwelling and the tree in their garden date from 1982 or thereabouts. 3. Mrs Blue's dwelling and its retaining wall date from around 1993. Mrs Blue has lived here since 1994. At that time, the tree was about 12 years old, relatively young for a Spotted Gum. 4. Periodically, from 1994, Mrs Blue notified the Camilleris that she was concerned about the tree overhanging her dwelling. She was worried the tree or its branches might fall onto her property, causing damage or injury. 5. In 2007 Mr and Mrs Blue applied to the Court seeking an order for tree removal. The Court made orders in Blue v Camelleri [2007] NSWLEC 138, including at order (1): "No excavation deeper than 100 mm is to take place, without further order of the Court, within 3 m of the outside of the base of the trunk of the Spotted Gum (Corymbia maculata) located adjacent to the boundary between [the Camilleris' property] and [the Blues' property] and located at approximately the midpoint of the front setback of [the Camilleris' property]." A tree assessment and report by a qualified arborist were also ordered, with a copy of the report to be provided to the Blues and to Parramatta City Council. 1. In 2009 the Camilleris engaged arborist Hugh Taylor, of Australian Tree Consultants Pty Ltd, to assess and report on the tree. Mr Taylor recommended some pruning of specific branches, and reinspection of the tree every five years. Mr Taylor noted that a split in the tree's bark was only a growth split, with no impact on the tree's structural integrity. 2. The Camilleris engaged Mr Taylor to carry out a further assessment in 2014. Mr Taylor reported that the tree was healthy and structurally sound, with vigorous growth, and that it required no further action. 3. Parramatta City Council's tree officer visited the Camilleris several times, inspecting the tree each time. 4. Mrs Blue noticed damage to her retaining wall in the first half of 2020. Since then, her grandson, Mitchell Blue, who acted as her agent at this hearing, has monitored the retaining wall as well as some hairline cracks in Mrs Blue's garage brick wall. 5. In late 2020 Mrs Blue made this application to the Court. With her application she filed a report by engineer G Keighran of Keighran Geotechnics. Onsite hearing 1. The hearing took place onsite. I observed the tree, Mrs Blue's retaining wall and garage, and surrounding conditions. I bring my own arboricultural experience and expertise to this decision, with observations of the tree limited to what could be seen from within the gardens of both properties. Mrs Blue's grandson, Mitchell Blue, acted as her agent; the Camilleris were self-represented. Framework for this decision 1. The Court may only make orders in this Pt 2 application if satisfied that the applicant has made reasonable effort to reach agreement with the owners of the land on which the tree is situated (s 10(1)(a) of the Trees Act). 2. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or injury to any person (s 10(2)). Then, before making orders, the Court must consider the matters at s 12 of the Trees Act. The applicant made reasonable effort to reach agreement 1. Mrs Blue had several discussions with the Camilleris prior to making this application. For reasons explained below, they could find no path to resolving the situation. I am satisfied that Mrs Blue's efforts were reasonable. The tree 1. The Spotted Gum is approximately 20 metres tall, its stem more than 60 cm in diameter. It is healthy; and its crown is without any major structural defects that can be seen from the ground. Broken branch stubs on the stem indicate that some branches have broken and fallen in recent years. 2. The tree provides shade and cooling; it contributes to neighbourhood amenity and to the benefits of the broader urban forest. It is a good example of this long-lived species, and could be expected to live for several more decades. 3. Mrs Blue is concerned that branches may fall from the tree. The tree's crown partly overhangs the front of her dwelling, where her bedroom is located. The Camilleris last engaged an arborist to inspect the tree in 2014, when the tree was found to be in good condition, requiring no work. At the time of the hearing, I observed that branch attachments were sound and no major defects were visible from the ground. Branch failures in the near future are unlikely. The retaining wall 1. Mr Keighran described the retaining wall as a core-filled concrete block wall with a single-brick face, topped by a double-brick header course. It runs from the garage wall at the front corner of Mrs Blue's dwelling, along the edge of her driveway, to her front boundary. The wall decreases in height toward the front boundary, such that it is more than a metre tall at the front of the dwelling but less than a metre tall at the front boundary. It is approximately 1.2 metres from the common boundary. According to Mr Keighran, the retaining wall and the garage wall, which also acts as a retaining wall supporting the land against the dwelling, are separate structures with a butted connection. 2. The retaining wall is mostly in good condition, but within approximately one metre of the dwelling there is cracking of the mortar, several bricks have come loose in the wall's upper section, and the wall has rotated, with the top of the wall being pushed out toward the driveway. Mr Keighran measured the wall's rotation at up to 30 mm from vertical. He found the corner of the dwelling was partially restraining the rotation, causing some of the distress in bricks and mortar. While the wall's rotation is most obvious next to the dwelling, Mr Keighran found that it continued for several metres, although its severity decreases along the driveway. Although Mitchell Blue stated that other parts of the wall were unaffected, I noted that a section near the front boundary was also rotated slightly toward the driveway. Mitchell Blue has observed the damage to become more severe since Mr Keighran's report, with further rotation and a greater number of loose bricks. 3. Mr Keighran's investigations were limited to visual observations. Based on Mrs Blue's understanding of the Court's 2007 orders, his instructions precluded any excavation – damaged parts of the wall are within 3 metres of the tree. Mr Keighran concluded on page 2 (Exhibit B) that "…the distress in the wall is due to rotation of the wall towards the driveway and it is most likely due to the presence of tree roots from the adjoining eucalypt located within several metres of the corner of the dwelling on the adjoining property. This can be confirmed by excavation down behind the retaining wall at the corner of the dwelling to ascertain the presence of the tree's roots and their contact with the retaining wall. Unfortunately, we were not allowed to undertake any excavation in the garden behind the retaining wall to allow us to confirm the presence of the tree roots during our inspection." 1. In October 2020, BRS Bricklaying Solutions provided a quote for demolishing and rebuilding the retaining wall on its existing footing, reusing the bricks where possible. The quoted price range was $11,390 to $13,790 depending on the number of bricks that would need replacing. Findings 1. Firstly, considering the tree's crown and its risk of limb failure, I find no reason to order any pruning. The tree is in good condition without major structural defects. I note that pruning to remove branches up to 50 mm in diameter for clearing a roof or building is exempt from permit requirements under Pt 5 of the Parramatta Development Control Plan 2011. 2. The Camilleris have apparently been under the impression that interfering with the tree, even pruning it, would require orders from the Court. 3. Turning to the retaining wall, it is apparent that at least part of the wall needs to be demolished and rebuilt. Mr Keighran's report does not specify whether remediation is required only for a section of the wall, or for its entirety. The quote obtained by Mitchell Blue is for rebuilding the entire wall. 4. Whether or not the Camilleris should pay for rebuilding Mrs Blue's retaining wall, or contribute to the cost of that work, depends on whether or not the tree has caused any of the damage. As set out earlier, the Court can only make orders if it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to Mrs Blue's property. The onus of demonstrating this lies with the applicant. So far, Mr Keighran has only been able to conclude that damage is "most likely due to the presence of tree roots" but excavation behind the retaining wall would be required to confirm this. My own observations lead to a similar conclusion: it is possible that roots have damaged the wall, but I cannot be satisfied, to the extent required at s 10(2) of the Trees Act, that this is the case. Furthermore, without further evidence, I cannot be satisfied that the tree is likely to cause damage to the wall in the near future. 5. Whether or not the Camilleris' tree needs to be removed, or requires any other interference, also depends on whether or not its roots are damaging the retaining wall, and if so, to what extent. The Camilleris are willing to take whatever measures are necessary to prevent further damage if it is shown that their tree is causing that damage. They are, and they submit, have always been, willing to take action but have lacked a satisfactory trigger to do so. 6. To determine the cause of damage, excavation is required behind the retaining wall. This must be at Mrs Blue's expense, given that she seeks orders for compensation and tree removal. Excavation should be undertaken such that root damage is avoided, requiring either hand tools, hydro-excavation (high-pressure water) or pneumatic excavation (high-pressure air). Excavation is required within 3 metres of the front of the dwelling, and may need to continue along the garage wall depending on what is revealed behind the retaining wall. The depth of excavation must be sufficient to demonstrate either that roots are growing behind and have damaged the wall, or that they have not grown against the wall. A consulting arborist must record the results and submit a report. This will allow the parties to reach some clearer understanding of the cause of damage to the wall, and will allow the Court to determine appropriate final orders. The orders below override the Court's earlier 2007 order preventing such excavation. Orders 1. Based on the foregoing reasons, the Court orders that: 1. Within 30 days of the date of these orders, the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 5) to excavate behind the applicant's retaining wall adjacent to her driveway, along the section within 3 metres of the front of the applicant's dwelling, and for a short distance along the garage wall if necessary, for a width of 500 mm and to a depth of one metre or as otherwise required to demonstrate whether tree roots grow against or in the immediate vicinity of the retaining wall. The excavation method used must not damage woody tree roots – suitable methods include digging with hand tools, hydro-excavation and pneumatic excavation. The arborist may engage a sub-contractor to carry out the excavation, should they wish, but must supervise the works. 2. Once the area is exposed, the arborist engaged in order (1) is to record and document the findings of the excavation in (1) and prepare a report, paid for by the applicant, that clearly demonstrates those findings, draws conclusions as to whether the tree has contributed to the damage, and recommends suitable options for avoiding further damage should the tree be found to be causing damage. 3. Within 40 days of the date of these orders, the applicant is to provide a copy of the report to the respondents, and file a copy of the report with the Court. The matter will then be relisted as required. ………………………………. D Galwey Acting Commissioner of the Court ********** 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: 31 May 2021