Land and Environment Court New South Wales Medium Neutral Citation: Vethanayagam v Nelson [2024] NSWLEC 1065 Hearing dates: 28 September 2023 Date of orders: 21 February 2024 Decision date: 21 February 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – row of trees along boundary wall – whether the trees have caused damage – whether the trees are likely to cause damage – application refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 5, 7, 10, 12 Cases Cited: Fang v Li & anor [2017] NSWLEC 1503 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Australian Standard AS2870-2011 Residential Slabs and Footings CSIRO, Foundation Maintenance and Footing Performance (2021) Category: Principal judgment Parties: Bella Padie Vethanayagam (Applicant) Larry John Nelson (First Respondent) Elizabeth Dacres Nelson (Second Respondent) Representation: Counsel: A Vethanayagam (Agent) (Applicant) A Cox (Solicitor) (Respondents) Solicitors: Tony Cox Lawyers & Conveyancers (Respondents) File Number(s): 2023/238748 Publication restriction: Nil Judgment Background 1. COMMISSIONER: Bella Vethanayagam (the applicant) and Dr Arichandiran Vethanayagam live at their large residential property in King Creek, where they built a low concrete wall (the wall) along their eastern boundary. Their neighbours, Elizabeth and Larry Nelson (the respondents), have a row of small lilly pillies (the trees) on their property between their long bitumen driveway and the wall. The trees were planted less than a metre from the wall by the previous owners of the respondents' property. 2. The applicant alleges that the trees have damaged the boundary wall, and will cause further damage in the near future. She 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 removal of the trees, 19 in total. The respondents refute that the trees have caused or will cause damage. They proposed that, if the Court is to make orders, such orders should be for the respondents to maintain the trees so that they are no taller than the boundary wall, and so that they do not contact the boundary wall nor spread to form a continuous canopy. 3. The respondents' proposed orders included an order for costs. During the hearing, the applicant also asked for a costs order, although this was not in her application. Commissioners of the Court cannot order costs. The hearing 1. The hearing took place onsite with the applicant represented by her husband, Dr Vethanayagam, and Mr Cox representing the respondents. Several affidavits and reports had been filed with the Court: a report by Joshua Dennis, an engineer, and reports and affidavits by others who also gave oral evidence during the hearing: * Graham Roberts – engineer * Ashley Corbett – builder * Dale Carr – engineer * Rhys Mackney – arborist * Sam Andrews – neighbour Framework for this decision 1. The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act: 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application. Reasonable effort to reach agreement 1. Correspondence between the parties (in Exhibit A) demonstrates that the applicant and her husband brought the issue to the respondents' attention, asking for the trees to be removed. The respondents, in turn, made it clear that they would not remove the trees. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondents and that the required notice of the application was given (s 10(1) of the Trees Act). Whether the trees have damaged the wall Evidence 1. The applicant alleges that the trees are planted too close to the wall and have damaged the wall. She relies on reports from Graham Roberts, an engineer, and Ashley Corbett, a builder. 2. In his report of August 2023 (Exhibit B), Mr Roberts described the wall as "… rendered and painted masonry and constructed off a reinforced concrete strip footing…" (p 7). While he stated that no site-specific soil investigation had been carried out, he described the soil as reactive clay (p 8). He made no findings that the trees had damaged the wall, but his instructions for the report (p 5) were too limited to determine "… if the adjacent tree planting was likely to have an adverse effect on the fence, and in particular within the following twelve months of when this advice was sort [sic]." Mr Roberts' conclusions relate to the likelihood of future damage, similar to a letter he wrote to the applicant on 18 May 2023 (in Exhibit A). 3. Mr Corbett's building report of 23 May 2023 (in Exhibit A) similarly addresses the likelihood of future damage to the wall, other than noting "… small hairline cracks in the render." 4. Joshua Dennis, an engineer, was instructed by the applicant to inspect the wall. He wrote in "Engineer's Certification" of 16 September 2022 of the risk of future damage only, referring to the CSIRO publication Foundation Maintenance and Footing Performance. 5. Mr Carr, an engineer instructed by the respondents, inspected the wall on 13 and 15 September 2023. His investigation included observations and measurements of the alignment of the wall and its pillars. In his affidavit of 22 September 2023 (Exhibit 4), Mr Carr observed (p 10) "… the alignment of the wall to be within tolerance of construction…". 6. Mr Carr measured cracks in the wall's render using a 'Concrete Institute of Australia Crack Width Tool'. 7. Mr Carr requested and obtained information from the builder of the wall, a Mr Galloway. Based on that information, in particular the use of 390 mm capping stones with mortar, Mr Carr found (par 7.32) that the cracks, occurring roughly at spacings of 400 mm, aligned with spacings of the capping stones. He concluded that (par 7.35) "… the cracks were not of a structural nature but rather a concern of workmanship…". 8. Mr Carr measured the alignment of the wall's pillars along its length, from Pillar 1 at its northern end to Pillar 13 at its southern end. At par 7.16, he wrote: "All pillars along the 35 m length of wall were found to be within tolerance of construction for vertical plumb with only Pillar 1 and 2 exhibiting 5-7 mm overturn towards Lot 9 [the respondents' property] over a 1200 mm long level only." 9. During oral evidence, Mr Carr stated that water pressure behind the wall might have contributed to some misalignment. Dr Vethanayagam asked if Mr Carr had considered the drainage installed along the wall, which Dr Vethanayagam stated runs from Pillar 5 to Pillar 13, and the sump in the applicant's front lawn. Mr Carr answered that the slope of the land might still result in water ponding behind the wall during heavy rain. He thought it was possible that the wall was constructed with its current alignment, or misalignment. He stated that the wall was structurally sound. Submissions 1. Dr Vethanayagam submitted that Mr Roberts informed him verbally that all pillars along the wall were tilting, although there is no evidence supporting this in Mr Roberts' written evidence. Dr Vethanayagam submitted that due to their proximity to the wall, the trees must be the primary cause of any damage to the wall. 2. Mr Cox submitted that the wall has no damage of any significance, and certainly none that could be attributed to the trees. Findings 1. I inspected the wall during the onsite hearing and saw no damage of significance. Cracking in the wall's render appears superficial only, and is best explained by Mr Carr's reasoning: it results from workmanship rather than structural damage. 2. The issue of pillar alignment also seems to be only minor. Despite any verbal statement to the contrary, Mr Roberts made no finding in his written evidence that the wall was out of alignment. According to Mr Carr's investigations, the alignment of all pillars was within tolerances. Mr Carr found the two pillars most out of alignment were Pillars 1 and 2 at the wall's northern end. The row of trees ends some distance before the end of the wall, so tree roots are unlikely to have contributed to any footing movement there. For these reasons, I cannot be satisfied that the trees have caused any damage to the wall. Whether the trees are likely to cause damage in the near future Evidence 1. Mr Roberts concluded (at par 6.1 of Exhibit B) that the trees "…have the potential to adversely affect the boundary fence" and that the effect will increase as the trees grow and with extended dry periods. He wrote (par 6.4) that he could not guarantee that the trees won't be causing damage to the wall in the next 12 months. He recommended removing the trees. 2. In his report, Mr Roberts cited Australian Standard AS2870-2011 Residential Slabs and Footings, which provides inter alia guidelines for minimum distances between foundations and tree plantings. He relied upon this to conclude that the trees are too close to the wall and will damage the wall. 3. Mr Corbett (in Exhibit A) concluded that dry conditions will force the trees' roots to spread further, impacting the footings of the wall. Mr Dennis (also in Exhibit A) wrote that there is a risk of upward pressure from tree roots, as well as the effects of tree roots on soil drying, damaging the wall. Mr Dennis relied upon the CSIRO publication Foundation Maintenance and Footing Performance to support this statement. 4. Mr Carr concluded (on p 19 of Exhibit 4): "Based on arborist report, detailed measurements of soil profile, and other discovered factors affecting the wall it is the formed opinion that the spacing and extent of the root system of the Lilly Pilly shrubs alone and in their current state do not threaten the structural integrity of the fence/wall." He continued: "If the root systems were able to extend further below and under the footings as a result of increased maturity then the formed opinion is consistent with building standards in that they would threaten the structural integrity of the fence/wall in root size causing footings to rise, and in extended dry periods exacerbate moisture loss in soil leading to shrinkage, subsidence and loss of bearing to the footings." 5. Mr Mackney, an arborist instructed by the respondents, described the trees as Syzygium australe, up to 1.6 metres tall, planted at 1.5 or 1.6 metre spacings approximately 0.6 metres from the wall. He agreed with the engineers' statements about soil type and the potential for trees, generally, to cause damage (p ii of Exhibit 3). He thought a root barrier could have, or should have, been installed at the time of tree planting to prevent the trees having any impact on the wall. Nevertheless, he concluded that the "… trees can be maintained in a manner which prevents their stature becoming sufficient to cause direct damage in the long term (i.e. greater than 12 months)." He recommended that the trees be maintained to keep each tree's canopy clear of the wall and adjacent trees. In answers to Dr Vethanayagam's questions, Mr Mackney said there was a low probability of the trees causing damage in the next 12 months if they are kept at their current size. He stated that maintaining small tree crowns will limit root growth. Submissions 1. Dr Vethanayagam submitted that the trees will cause damage in the future. He submitted that the 'near future' referred to at s 10(2)(a) of the Trees Act should be considered as a period greater than 12 months, given that the engineers have all said the trees will cause damage. He submitted that the CSIRO document referred to by the engineers supports this. He submitted that the engineers and the arborist could not rule out, or guarantee against, the trees causing damage in future. On this basis, he argued, the trees should be removed. 2. Mr Cox submitted that the applicant has provided no evidence demonstrating that the trees are likely to cause damage to the wall in the near future. He argued that the Court should rely on Mr Mackney's uncontested arboricultural evidence that damage is unlikely at all, let alone in the next 12 months, if the trees are kept at their current size. Mr Cox submitted that the reports of Mr Roberts is silent on factors such as drainage and the existing tilt of Pillars 1 and 2 – rather everything in his report is theoretical. He submitted that the respondents have clearly declared their intention to maintain the trees at a small size, and have proposed orders for that. Findings 1. I find the trees are not likely to cause damage to the wall in the near future. In Yang v Scerri [2007] NSWLEC 592, at [14], the Court established a principle that 'the near future' (at s 10(2)(a) of the Trees Act) might best be considered in tree disputes as a period of 12 months. The Court has consistently relied upon this principle. Despite Dr Vethanayagam's argument that a longer period should apply in this matter, I find there are no exceptional circumstances here that would justify that. 2. Regarding the likelihood of future damage, evidence relied upon by the applicant is theoretical only – there is nothing to satisfy the Court that damage is likely in the near future. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J discussed at [38] the need for a causal nexus to exist between the tree and the damage to, on the balance of probabilities, satisfy the test at s 10(2)(a) of the Trees Act. Such a nexus has not been demonstrated here. The tradition of engineers, when assessing the likelihood of future damage, relying on documents such as AS2870 and the CSIRO document referred to earlier, was discussed in Fang v Li & anor [2017] NSWLEC 1503 (Fang) at [48]-[57]. The principle at [59] of Fang sets out the type of investigations and evidence that might assist a party to demonstrate a causal nexus, where one exists. 3. I accept Mr Mackney's evidence that the trees are unlikely to cause damage if maintained at their current size. 4. On the evidence before me, and relying on my own expertise and experience, I am not satisfied that the trees are likely to cause damage in the near future. Whether the trees are likely to cause injury 1. The applicant adduced evidence from another neighbour, Sam Andrews, who has a right-of-way over the respondents' driveway for access to his property. Mr Andrews' eyesight capabilities are less than 100%. He stated that he almost hit another car while driving along the driveway, his vision, or his ability to manoeuvre, restricted by the trees. Dr Vethanayagam submitted that such an incident is likely to recur, being further justification for removing the trees. He submitted that Mr Andrews has a right to remove the trees should he wish. 2. The driveway is the usual width of a driveway, with enough room either side for cars to pass each other in opposite directions. Even if an accident should occur here, and injury result, I do not accept that the trees would be its cause. Nuisance 1. Dr Vethanayagam submitted that the trees are so close to the wall that he could not fit a wheelbarrow between the trees and the wall. The need for this was not clear, but he further submitted that the trees prevented him inspecting or maintaining the wall. This would not be a reason for orders under Pt 2 of the Trees Act, where the jurisdictional tests are limited to damage or injury caused by trees. As the applicant's other issues do not relate to damage, he is not prevented by s 5 of the Trees Act from bringing an action in nuisance elsewhere. Conclusion 1. I am not satisfied that the trees have caused, or are likely in the near future to cause damage to the boundary wall, nor that they are likely to cause injury. Therefore, the Court cannot make orders in these proceedings and there is no need for me to consider the matters at s 12 of the Trees Act. Orders 1. The Court orders: 1. The application is refused. 2. The exhibits are returned, other than Exhibit A. ………………………………. 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: 21 February 2024