Land and Environment Court of New South Wales CITATION : Lazarus and Anor v Harry [2009] NSWLEC 1055 APPLICANT Marcella Lazarus and Peter Nissen PARTIES : RESPONDENT Barbara Harry FILE NUMBER(S) : 21219 of 2008 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Damage to Property LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 18/02/2009 EX TEMPORE JUDGMENT DATE : 18 February 2009 APPLICANT Marcella Lazarus and Peter Nissen, litigants in person LEGAL REPRESENTATIVES: RESPONDENT Barbara Harry, litigant in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 18 February 2009 21219 of 2008 Marcella Lazarus and Peter Nissen v Barbara Harry JUDGMENT The extemporaneous decision was given on 18 February 2009. This written judgment includes the findings given on-site, relevant observations and background information. 1 ACTING COMMISSIONER: A very large Plane tree is growing in the backyard of 8 Punch Street, Balmain, which is owned by Ms Harry. The Plane tree was on the property when she purchased in 1973. The tree is located close to the common boundary of the adjoining property to the north. 2 Ms Lazarus and Peter Nissen are the owners of 10 Punch Street, Balmain, the adjoining property to the north. They bought their property three and a half years ago in 2005. They make an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage, and to prevent injury to people. 3 They seek orders for removal of the tree and its root system from their property, repair of damage to their paving and house wall, and reinstatement of the unsafe retaining wall to 8 Punch Street, at Ms Harry's cost. 4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person? 5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 6 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. Reports and public submissions 7 Ms Lazarus and Mr Nissen include two reports in their original application: a. Part of a survey plan of their property. At the hearing they produced the full survey report; b. A report on the tree by the arborist Bruce Macleod, dated 3 August 1993. 8 Ms Lazarus and Mr Nissen lodged two further reports at the Court on 19 January 2009: a. Tree Report 10 Punch Street Balmain , dated January 2009 by arborist William Home; b. 10 Punch Street, Balmain Site Inspection dated 14 January 2009 by structural engineer Angus Johnson. Neither of these reports included an expert witness statement giving acknowledgement of and agreement to be bound by Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules, nor by the duties of an expert witness to the Court in accordance with s 14 of the Court Directions for Tree matters. 9 Ms Harry includes the following in her response to the application: a. Tree Report, 8 Punch Street, Balmain by arborist Bruce Macleod dated 12 January 2009. This report contains acknowledgement of the requirements for expert evidence as stated in s 14 of the Court Directions for Tree matters. b. A short statement by the arborist John McKillop, without expert witness acknowledgement; c. A short statement by Mr David Parker, without expert witness acknowledgement; d. Three letters of support for retention of the tree from neighbours at 2 Punch Street; 6 Punch Street; and 46 Birchgrove Road, Balmain. 10 Leichhardt Municipal Council provided a tree inspection report prepared by Elizabeth Hannon, Landscape Assessment Officer, dated 18 December 2008. The tree 11 The tree is described by Mr Macleod in his 2009 report as a London Plane (Platanus x hybrida) more than 20 m in height with a crown spread of 15–20 m. The trunk forks into two at about 3 m above ground, those trunks having diameters of about 0.6 and 0.8 m. The tree has good health and good structure. Having observed the tree at the hearing, I agree with Mr Macleod's description and assessment of it. 12 Ms Hannon states: The tree is a significant landscape element, clearly visible in the surrounding landscape. It is also a deciduous tree which would be providing summer shade and solar access in the winter months. It is considered by Council that the tree is providing substantial climatic, aesthetic amenity contribution not only to the property but also to the surrounding area. It is considered that the tree is not an unacceptable risk and does not require removal at this particular point in time. Background 13 Ms Harry and the neighbours who wrote letters of support state that the tree is around or more than 40 years old. 14 Prior owners of 10 Punch Street had Mr Macleod inspect the tree and damage to their path and the retaining wall in 1993. His report dated 3 August 1993 states: I was shown an uplift in the footpath at the side of the house. I investigated this with a knife and found one root near each crack in the paving of 20 mm and 5 mm diameter respectively. I was shown a bulge in the wall. I am informed that the bulge in the wall has increased in the last 18 months and that no cracks in the pavers were discernible before that time. His recommendations were: On this site it is likely that the roots are causing the bulge in the wall. The only way to see the extent of the problem and to know what options exist is to carefully expose the soil behind the wall. It may be that the wall can be carefully re-built to mutual satisfaction without damaging the tree. After the stage of exploration, it would be possible to sever the two small above-mentioned roots that were seen to be lifting the path. It may be that further wall or path repair is needed in 5-10 years time . 15 No work was done to repair the path or wall, or to trim the tree roots at that time, and none has been done to date, more than 15 years later. 16 Ms Lazarus and Mr Nissen purchased their property in 2005 with the damage to the path and wall clearly visible. At the hearing Ms Lazarus advised that Mr Nissen is a builder. 17 Ms Lazarus and Mr Nissen claim that the damage has increased since they purchased their property. That damage, as stated in Mr Johnson's report is to the retaining wall, paving and the fibro extension at the rear of the house. Regarding the fibro extension, Mr Johnson concludes that the movement is most likely to have been caused by tree roots below the foundation level. 18 Mr Johnson states that the 'stone wall straddles the ….. boundary of the property and acts to maintain a 1.4 m differential in ground levels between' the properties. He finds that 'The wall in its current condition is not deemed to be structurally stable and may collapse further with rain or water behind and flowing through the wall'. 19 At the hearing which occurred after a few days of heavy rain, a few rocks from the top of the eastern end of the wall had fallen onto the paving. 20 Ms Lazarus and Mr Nissen claim in their application that the retaining wall belongs to Ms Harry, and on that basis she should pay the full cost of its repair. 21 Ms Lazarus and Mr Nissen claim that small branches up to 20 mm diameter falling from the tree are a risk of injury. 22 Ms Harry says that she has pruned the tree over her own, Ms Lazarus and Mr Nissen's property, and other properties in the past, and is willing to do so again. Findings 23 I find on the basis of the various reports and my own observation, that roots of the tree have contributed to damage of the retaining wall, have damaged the paving, and are likely to have damaged the fibro extension. Therefore the tree meets the first test in s 10(2)(a) of the Act, and I am able to make orders regarding it. 24 I find on the basis of Mr Johnson's report and my observation at the hearing that the top of the eastern end of the wall has collapsed, that the wall is dangerous and should be repaired urgently. Therefore I will make orders for that repair. 25 I find that the paving on the southern side of the fibro extension presents a trip hazard, and the fibro extension is likely to be further damaged by water entry through the crack in the wall. Therefore the paving and the fibro extension should be repaired. I will make orders for cutting of roots that are likely to have caused the damage, so that repairs can be carried out. 26 I find on the basis of Ms Hannon's report and my own observation, that the tree is worthy of retention 27 I find on the basis of Mr Macleod's reports and my own observations, that the tree can be retained. On that basis I will order that the wall is repaired in a manner that protects the large root that is exposed at the eastern end of the wall, and other roots that are necessary for the health and stability of the tree. 28 I find on the basis of the survey provided and my own observations of the excavated bedrock east of the wall on Ms Lazarus and Mr Nissen's property, that the retaining wall is a shared wall on the common boundary, supporting both the excavated bank above their property and fill on Ms Harry's property. Further, based on my observation that the ground level rock course beside the paving on Ms Lazarus and Mr Nissen's property is almost straight from east to west, with regular gaps to the paving along that line, I find that the base of the wall has not moved since the paving was installed, and based on the style of brick paving, that is probably a period of about 30 years. On that basis I find that the wall should be rebuilt in its present position. 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. 30 I find that small falling branches from the tree are not likely to cause injury as the branches fall infrequently and the backyards are not in constant use. Agreement regarding pruning 31 At the hearing the parties came to an agreement regarding pruning of the tree. As I did not find reason to order that pruning, I record the agreement of the parties as follows: a. The London Plane tree shall be pruned over 10 Punch Street, Balmain, with half the cost paid by Ms Harry and half the cost paid by Ms Lazarus and Mr Nissen; b. The pruning shall be general 'lifting' (removal) of the lower branches to about 2 m in height above their present position, but no branches shall be cut where the diameter is greater than 70 mm; c. The pruning work shall be completed within six weeks of completion of repairs to the retaining wall on the boundary between the properties; d. The work shall be carried out by an arborist with AQF level 3 qualifications and suitable insurances, and the work shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees . e. Three quotations shall be obtained for the work, with at least one being obtained by Ms Lazarus and Mr Nissen. The lowest quotation shall be accepted unless both parties agree otherwise; f. Ms Harry shall initiate the work and general communication with the contractor. Each party shall allow access over their property for the carrying out of the work, and may supervise the work over their property. The work shall take place at reasonable times and on reasonable notice. g. The contractor shall bill each party separately, and each party shall pay their half of the cost of the work to the contractor. Orders 32 At the hearing the parties came to agreement regarding repairs to the stone retaining wall, paving and fibro extension. As these are matters about which I intended to make orders, and their agreement seems a fit remedy, I make these orders by consent of the parties. 33 The application is upheld in part, and the Court makes the following Orders that apply to 8 Punch Street, Balmain and 10 Punch Street, Balmain: Stone retaining wall 1. The stone retaining wall between the backyards of 8 Punch Street, Balmain and 10 Punch Street, Balmain shall be dismantled and a suitable, structurally adequate wall shall be built in the same position for that section being about 3 . 5 m west of the exposed bedrock beside the fibro extension to about 0 . 4 m east of the old brick outhouse on 10 Punch Street; 2. The large root of the London Plane tree visible behind the eastern end of the wall shall be protected, and allowed for in the reconstruction of the wall with suitable expansion jointing or other means to avoid future damage to both the tree root and the wall. The smaller roots branching off below that large root, which are visible through the gap into the wall, shall be pruned off; 3. Any tree root with diameter of less than 50 mm, which would interfere with reconstruction of the wall, shall be pruned off. Any tree roots with diameter of 50 mm or greater, that would interfere with reconstruction of the wall, shall be inspected by an arborist of Ms Harry's choice, and cut or protected on that arborist's advice in order to maintain the health and stability of the tree; 4. The retaining wall work shall be completed by 30 April 2009, by a suitably qualified and insured contractor; 5. Ms Harry shall pay three quarters of the cost of the retaining wall work, and Ms Lazarus and Mr Nissen shall pay one quarter of the cost. The cost of the retaining wall work shall include the cost of the arborist for works in 3. above; 6. Three quotations shall be obtained for the general retaining wall work, with at least one being obtained by Ms Harry. The lowest quotation shall be accepted unless both parties agree otherwise; 7. Ms Lazarus and Mr Nissen shall initiate the work and general communication with the wall contractor. Each party shall allow access over their property for the carrying out of the work, and may supervise the work over their property. The work shall take place at reasonable times and on reasonable notice; 8. The contractor shall bill each party separately, and each party shall pay their portion of the cost of the work to the contractor. Paving and tree roots 9. The paving on 10 Punch Street, south of the fibro extension, shall be lifted in that area being about 1.8 m long from below the window to four bricks west of the fibro extension; 10. All roots within 0.2 m of the surface of that paving shall be removed; 11. A trench shall be dug beside the house where the paving is removed. That trench shall be to bedrock or 0.5 m deep, whichever is reached first, and all tree roots in the trench shall be cut; 12. The root pruning shall be carried out by an AQF Level 3 arborist, and the work shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees. The lifting of paving and root pruning shall be carried out by contractor(s) with suitable insurances; 13. The lifting of paving, trenching and root cutting shall be completed by 30 April 2009, at full cost to Ms Harry; 14. Ms Harry shall not pay for filling in of the excavations or relaying of the paving. Timber paling dividing fence 15. The existing dilapidated timber fence between the backyards shall be removed, and a new lapped paling timber fence 1.8 m high shall be constructed from the rear wall of Ms Harry's house to the brick wall near the rear boundary of her property; 16. The new fence shall be completed within eight weeks after completion of repairs to the retaining wall; 17. The cost of the paling fence work shall be shared, half by Ms Harry and half by Ms Lazarus and Mr Nissen, and Ms Harry shall have carriage of the fence work; 18. Ms Harry shall retain soil on her property so that it does not build up against the new timber fence. The fibro extension on 10 Punch Street 19. Ms Harry shall not pay for repairs to any part the fibro extension on 10 Punch Street. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.