Land and Environment Court of New South Wales CITATION : Pozzecco v Bedi [2009] NSWLEC 1049 APPLICANT Lisa Pozzecco PARTIES : RESPONDENT Kam Bedi FILE NUMBER(S) : 21103 of 2008 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Removal of seven Cypress trees by 15 March 2009. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 29/01/2009 EX TEMPORE JUDGMENT DATE : 29 January 2009 APPLICANT Lisa Pozzecco, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Kam Bedi, litigant in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 29 January 2009 21103 of 2008 Lisa Pozzecco v Kam Bedi JUDGMENT The extemporaneous decision was given on 29 January 2009. This written judgment includes the findings given on-site, relevant observations and background information. 1 ACTING COMMISSIONER: Ten Cypress trees are growing in the backyard of 24 Heritage Way, Glen Alpine, which is owned by Mr Bedi. The trees are situated above a timber retaining wall that is largely on the common boundary with the adjoining property to the north. Mr Bedi who is a Civil Engineer was present at the onsite hearing and was assisted by his friend Mr Rajadurai who is a building inspector. 2 Ms Pozzecco is the owner of 4 Carclew Place, Glen Alpine, the adjoining property to the north. She claims that the trees have overgrown the airspace at the side of her house making that area shady and impossible to grow grass, that the trees are pushing the retaining wall over, that the trees will fall onto her property, and that soil will wash into her property. She has made an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage. She sseeks orders that Mr Bedi remove the trees and what is unsafe, replace the retaining wall, and put in sufficient drainage to stop water entering and flooding her yard. Ms Pozzecco was assisted at the hearing by her partner Mr Raffoul. 3 Mr Bedi claims that Ms Pozzecco has caused the retaining wall problem by undermining the wall, and that he does not direct stormwater onto her property. 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? Background 6 Mr Bedi says that the trees and the retaining wall were existing when he purchased his home in 1992. He says that the trees were about 1.0 to 1.2 m tall at that time. 7 Ms Pozzecco purchased her home four years ago, and thinks that the house was built in about 1989. At the time of purchase there was deposited soil built up against the southern side of the house, about 0.2 m deep, covering vents to the under floor area. 8 I observed, based on surveys provided by each party for their own property, that the retaining wall seems to follow the common boundary for about 24 m westward from their eastern boundaries, then swings south-westerly in a curve within Mr Bedi's property. The wall retains about 1 m height of earth at the centre of its length, less at each end. 9 Based on the construction drawings for Mr Bedi's house, his property was filled on his side of the wall to support the floor slab and paving on the northern side of the house. 10 Based on the survey dated 9 August 1987 of her property, Ms Pozzecco's land originally sloped quite steeply to the north, falling about 5 m over the 35 length from her boundary with Mr Bedi. It seems that a narrow level area was cut and filled south of her house, with possibly part of the original sloping surface left intact at the foot of the common retaining wall. 11 The parties agree that the retaining wall is the common boundary fence between their properties for that length of about 24 m where it follows the common boundary. They confirmed that given the choice, they would want a new wall to be a common wall on the boundary. 12 The parties also agree that Mr Bedi replaced the eastern sections of the wall about two to three years ago because the timbers were rotting, and installed a lattice fence on top of the wall. 13 I observed that the new sections of wall are leaning into Ms Pozzecco's property, and that the western sections on the common boundary are rotted and dilapidated. The original sections of wall are now about 20 years old. 14 I observed that the eastern seven of the trees are growing beside the top of that part of the wall that is on the common boundary. The seven trees have trunk diameters of about 0.2 to 0.5 m and are located about 0.2 to 0.4 m from the top of the wall. I observed that soil had been excavated between the trees and the wall, and that the soil and roots of the trees are not now in contact with the wall. 15 The height and overhang of the eastern seven trees had been pruned by Mr Bedi prior to the hearing, and Ms Pozzecco does not request further pruning to clear her airspace. 16 The other trees to the west are well back from the common boundary, have not been pruned, and no evidence is provided that they have damaged Ms Pozzecco's property. 17 The certified copy dated 3 March 1992 of the 30 March 1988 survey of Mr Bedi's property shows that the common boundary is 1.7 m from the north-western corner of his house. I measured the distance to the retaining wall to be 1.9 m at that point, placing the wall on Ms Pozzecco's property at this time, and the trees on Mr Bedi's property. 18 Within the last few months, Ms Pozzecco has built additional, lower retaining walls on her property, parallel with and about 0.6 m on her side of the central part of the original boundary wall, which seem at least partly to support the boundary wall. She claims that the lean of the boundary wall is about the same or only slightly greater since these new walls were built. From Mr Raffoul's description of the work, and my own observation, it seems that the work on the lower walls did not remove the remaining earth of the original slope, as the walls were built beyond that slope and additional fill added to it. 19 Ms Pozzecco says that she is not in a financial position to pay for half the cost of design of a more substantial wall by a structural engineer, or construction of such a wall. 20 At the hearing there was discussion between the parties about possible courses of action to share the cost of repairing and rebuilding the boundary wall and the lattice fence. I note the following agreement of the parties in this regard: a. That the common boundary be surveyed showing the location of the boundary in relation to both houses and the retaining wall. That the survey be carried out at half cost to each of the parties, and that a separate copy of the survey report be provided to each of the parties. That the survey be completed by 30th of March 2009. b. That the parties agree to work together to achieve basic repair and beautification to that part of the wall and fence that is up to about 24 m from the eastern boundary. Findings 21 I find that the retaining wall is either a common boundary wall or on Ms Pozzecco's property. In either case, damage to the wall by a tree on Mr Bedi's property is damage to the applicant's property for the purposes of the Act. 22 I find on the basis of the survey of Mr Bedi's property, and measurements made on site, that all the Cypress trees are situated on Mr Bedi's property. 23 I find that the seven more easterly of the trees have each contributed to damage of the retaining wall, and therefore meet the first test in s 10(2)(a) of the Act. I note that the parties have agreed to repair and beautify that part of the wall that is beside these trees, and I find that such repair cannot be carried out or expected to last if the trees remain. I find that the trees are likely to fall into Ms Pozzecco's property as their roots have been cut and they have little support on the northern side. For these reasons I will order the eastern seven trees to be removed. 24 I find it likely that the eastern seven trees have made less contribution to damage of the retaining wall than the pressure of water and soil on Mr Bedi's property, and the general dilapidation of the wall and nature of construction of the wall. I find that although the trees may have exerted some pressure on the wall, their roots are likely to have provided soil stability that avoided further damage. For these reasons I do not find it appropriate to order Mr Bedi to repair the wall entirely at his cost, on the basis of damage done by the trees. 25 I do not have a comfortable level of satisfaction that any of the earthmoving or wall building that Ms Pozzecco has carried out, has damaged the retaining wall on the common boundary. 26 I find that the trees west of the eastern seven are further from the common boundary, and even if they have damaged the retaining wall nearby, that wall is Mr Bedi's property, and damage to it is not damage to the applicant's property for the purposes of the Act. 27 I find that the flow of water or soil into Ms Pozzecco's property is not caused by any of the trees. Further, her evidence is that the soil build up existed when she bought her property, so any damage at that time would have been accommodated in the price she paid for the property. 28 Although I might have ordered rebuilding of the damaged wall, with the cost to be shared by the parties, I have not done so on the basis that would cause financial hardship for Ms Pozzecco, and the parties have agreed to work together to carry out suitable repairs. Orders 29 The application is upheld in part, and the Court makes the following orders that apply to 24 Heritage Way, Glen Alpine: a. The seven most easterly of the Cypress trees that are located along the common boundary with 4 Carclew Place, Glen Alpine, shall be removed and the stumps either removed or poisoned, at Mr Bedi's cost by 15 March 2009. ___________________ 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.