Land and Environment Court New South Wales Medium Neutral Citation: Blue v Camilleri (No 2) [2021] NSWLEC 1476 Hearing dates: 8 March 2021 and 7 July 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The applicant and respondents, or contractors they might engage, may carry out excavation within the root zone (including within 3 metres of the base of the trunk) of the respondents' Spotted Gum ('the tree') where such works do not damage structural roots and do not impact the health or stability of the tree. If at the time of the works the tree has been, or is about to be, removed, impacts to the tree's roots need not be considered. (2) The exhibits are returned, other than Exhibit A. 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 – root investigation – whether the respondents should contribute to the cost of repairs – whether tree removal is required – order nullifies the effect of an earlier order preventing excavation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12 Cases Cited: Blue v Camelleri [2007] NSWLEC 138 Blue v Camilleri [2021] NSWLEC 1303 Nott v Leung; Chu v Leung [2019] NSWLEC 1394 Texts Cited: Australian Standard AS4970–2009 'Protection of trees on development sites' Parramatta Development Control Plan 2011, Pt 5 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. In 2007 Jeanette Blue ('the applicant') and her husband applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders relating to a neighbouring Spotted Gum (Corymbia maculata) ('the tree') belonging to Frank and Rose Camilleri ('the respondents'). The Court made orders for the Camilleris to obtain an assessment and report on the tree from a qualified arborist. The Court also made an order preventing excavation within 3 metres of the tree without further orders from the Court. 2. In 2020 Mrs Blue applied to the Court, again pursuant to s 7 of the Trees Act, seeking orders for the tree to be removed. Apart from her ongoing concern regarding the risk of branches damaging her dwelling or causing injury, Mrs Blue also alleged that the tree's roots were now damaging the retaining wall alongside her driveway. Due to the Court's earlier orders preventing excavation near the tree, she had not engaged anyone to investigate the cause of damage to her retaining wall. 3. I heard the matter following Mrs Blue's 2020 application onsite, and made orders on 31 May 2021 for investigation to be carried out behind the retaining wall. Alexis Anderson, arborist at Bluegum Tree Care and Consultancy, reported on the findings of that investigation (Exhibit C). On 7 July 2021 the parties were provided with an opportunity to make further submissions following receipt of the report. Mitchell Blue, Mrs Blue's grandson, again acted as her agent. My earlier consideration of other evidence and earlier submissions was given in Blue v Camilleri [2021] NSWLEC 1303. Framework for this decision 1. 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 applicants' 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 tree 1. My earlier onsite findings regarding the tree can be summarised as follows: * The Spotted Gum is approximately 20 metres tall, its stem more than 60 cm in diameter. * The tree 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. Branch failures in the near future are unlikely. * 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, based on an above-ground assessment, it could be expected to live for several more decades. The retaining wall 1. The earlier judgment in the current proceedings, at [21]–[23], included the following discussion regarding the retaining wall: "21 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. 22 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. 23 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. I note here two parts of Mr Keighran's statements. Firstly, while he concluded that the wall's distress resulted from rotation, he was uncertain of the cause of rotation but thought it "most likely" resulted from tree roots contacting the wall. Secondly, his statement that "…we were not allowed to undertake any excavation…" reflects the position of the parties in these proceedings: they have each assumed that nothing could be done to or near the tree without further orders from the Court. However, the previous orders only prevented excavation within 3 metres of the tree; not, for instance, pruning of the tree's crown. Furthermore, orders or directions from the Court, available at the earlier directions hearing, would have allowed investigative excavation behind the retaining wall. Nevertheless, following the orders of 31 May 2021, such investigation has now been undertaken. The report on further investigation 1. According to his report (Exhibit C), on 21 June 2021 Alexis Anderson used hand tools to excavate behind the retaining wall, creating a trench 3.5 metres long, 0.5 m wide, to a depth of one metre. Any roots that were encountered were exposed and left intact. At s 4.1 of his report, Mr Anderson summarised his findings in a table, which I copy below. 1. At s 4.2 of his report, Mr Anderson included the following photos, the first from the south-western side of the trench, and the second from the north-eastern side of the trench standing atop Mrs Blue's retaining wall. 1. At s 4.3 of his report, Mr Anderson represented the roots diagrammatically: 1. At s 4.4, Mr Anderson discussed the findings as follows: "It is likely that the 50mm diameter root in contact with the wall is a major contributing factor to the wall damage. The damage to the wall is likely to increase in the future as the 50mm diameter root increases in girth. It is possible that the 30mm diameter root is contributing to the wall damage. This root is likely to contribute to damage to the wall in the future. Both of these roots are located within the Structural Root Zone of the tree and are considered to be structural roots that contribute to the inground anchorage and stability of the subject tree. The other roots encountered are unlikely to be contributing to the wall damage." 1. At s 5 of his report Mr Anderson then gave the following 'Management Options': "Pruning of the 50mm diameter and 30mm diameter roots would be required to avoid further damage to the wall. The distance back from the wall that root pruning would be necessary should be determined by an engineer or builder based on the amount of space required to install a drainage line and backfill with aggregate. Root pruning within the structural root zone will have the potential to compromise the inground stability and anchorage of the subject tree. Although the extent to which the roots described in this report contribute to the anchorage of the tree is unknown, it would be reasonable to conclude that the likelihood of whole tree failure during an extreme weather event would be increased." 1. Mitchell Blue submitted that pruning roots would not prevent them growing back and causing further damage in future. Findings No orders will be made for compensation 1. I accept that the 50-mm root described by Mr Anderson has most probably contributed to the retaining wall's rotation. I also accept that the 30-mm root he described has possibly contributed to the wall's rotation. I concur with Mr Anderson that other roots exposed by excavation are unlikely to have contributed to the wall's rotation. 2. Despite my finding that the largest root has most probably contributed to the retaining wall's rotation, I would not order the Camilleris to pay for all or part of the costs to repair the wall for two reasons. 3. Firstly, I find that tree roots are not the only cause of the wall's condition. The larger tree root has grown against the wall for some years. As its girth has increased, it has had to displace either the soil on one side, or the retaining wall on the other. Mr Anderson was able to remove the soil with hand tools, suggesting it was not extremely compacted. In my mind, it is more likely that the root's girth increase has displaced soil before it has pushed the wall out of alignment, as the soil has offered less resistance. While some minor displacement of the wall might be due to root growth, I doubt that the root's contribution would cause the extent of rotation observed here. Other factors are likely to be equally significant: the wall's design and construction, the height of soil retained by the wall, conditions behind the wall, and possibly a lack of any maintenance of drainage behind the wall. While drainage is often installed behind retaining walls, it is my experience that its performance declines over time as silt and other material obstructs it. No evidence was adduced by Mrs Blue that any drainage behind the wall has been maintained. 4. Secondly, even if the Camilleris' tree roots were the principal cause of damage to the wall, they have not been negligent in their actions, nor in any omissions. Prior to Mr Anderson's report, Mrs Blue had not presented the Camilleris with any evidence to demonstrate causation of damage. The Camilleris had no reason to remove their tree or to prune its roots. These findings, relating to s 12(h) of the Trees Act, are relevant considerations when determining orders regarding compensation or apportionment of repair costs. 5. I have also considered other relevant matters at s 12 of the Trees Act. As described earlier, the tree is a healthy example of its species that: contributes to the landscape value of both properties, contributes to public amenity, provides shading and cooling, and contributes to local environmental values. 6. My findings above enliven the Court's jurisdiction at s 10(2)(a) of the Trees Act: the Camilleris' tree is a cause of damage to Mrs Blue's property. However, after considering matters at s 12 of the Trees Act, I would not make orders for the Camilleris to contribute to repair works to Mrs Blue's retaining wall. No orders will be made for removing the tree 1. Considering the size of the Camilleris' Spotted Gum, the roots found against or near Mrs Blue's retaining wall are relatively small. In his report Mr Anderson included calculations of the tree's structural root zone (SRZ) according to Australian Standard AS4970–2009 Protection of trees on development sites. He found the radius of the Spotted Gum's SRZ is 3.0 metres. Mr Anderson wrote (page 4) that the SRZ "… is the area of undisturbed soil and roots required to maintain tree stability." This suggests that disturbing soil or roots within the SRZ will cause a tree to become unstable. Contrary to this, my understanding is that severing or damaging roots within the SRZ can affect tree stability, while damaging roots outside the SRZ is less likely to do so. However not all roots within the SRZ are critical to a tree's stability. The SRZ is a model that provides general guidance when working near trees, but a qualified arborist should determine impacts of particular actions based on investigations. 2. Relying on my own experience with this species, I find that the roots observed against the wall are unlikely to be critical to the Spotted Gum's stability. The tree is likely to have many roots of this size, and larger, within its SRZ. Mr Anderson wrote (page 8): "Although the extent to which the roots described in this report contribute to the anchorage of the tree is unknown, it would be reasonable to conclude that the likelihood of whole tree failure during an extreme weather event would be increased." In my mind, any such impacts on tree stability caused by pruning these roots would be minimal and are unlikely to result in whole tree failure. 3. It follows that Mrs Blue can carry out repair works to her wall as she sees fit, including pruning of the roots exposed by Mr Anderson's investigation. This should allow sufficient space for any drainage pipes and material to be installed behind the wall. Where any works extend further along the wall, beyond the trench shown in Mr Anderson's report, other roots may be encountered. Should that occur, further assessment of the impacts of interfering with those roots may be required. If further interference with the tree becomes necessary, that is a matter that can be dealt with through the usual application process to the local council, in this case Parramatta City Council. Importantly, the Camilleris have explained that they are willing to carry out whatever actions are necessary to prevent their tree causing damage, and to remedy damage caused by their tree. To that end, the Camilleris are not in dispute with Mrs Blue – they merely lacked the evidence to demonstrate that their tree had caused damage. Considering this, it seems that further orders from the Court might not be needed, beyond those made below. Although I found in Nott v Leung; Chu v Leung [2019] NSWLEC 1394 that the lack of a dispute would not prevent the Court making orders in proceedings under the Trees Act, the inclusion of the word Dispute in the full name of the Trees Act suggests that bringing a resolution to a dispute between neighbours is at the heart of the Court's role here. Where tree owners and their neighbours have the opportunity to cooperatively undertake works with council consent, they might be left to that process. If that proves unsatisfactory, they can reapply to the Court for further orders. 4. For the reasons above, I will not make any orders for removing or otherwise interfering with the tree. However, an order will be made to allow excavation within 3 metres of the tree, thereby overriding the restrictive order of 2007, and allowing Mrs Blue to undertake repair works to her retaining wall. No orders will be made for pruning the tree's crown 1. As I found in Blue v Camilleri [2021] NSWLEC 1303, there is no reason to order any pruning of the tree's crown. The tree is in good condition without major structural defects. 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. While more extensive pruning would require council consent, it would not require orders from the Court. Orders 1. Order (1) below nullifies the effect of order (1) in Blue v Camelleri [2007] NSWLEC 138. Based on the foregoing reasons, the Court orders that: 1. The applicant and respondents, or contractors they might engage, may carry out excavation within the root zone (including within 3 metres of the base of the trunk) of the respondents' Spotted Gum ('the tree') where such works do not damage structural roots and do not impact the health or stability of the tree. If at the time of the works the tree has been, or is about to be, removed, impacts to the tree's roots need not be considered. 2. The exhibits are returned, other than Exhibit A. ………………………………. D Galwey Acting Commissioner of the Court ********** Amendments 01 September 2021 - Amended jurisdiction to Class 2. 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: 01 September 2021