Owners Corporation of Strata Plan 52066 v Erlikh & ors [2015] NSWLEC 1548

Land and Environment Court New South Wales

Medium Neutral Citation: Owners Corporation of Strata Plan 52066 v Erlikh & ors [2015] NSWLEC 1548 Hearing dates: 26 November 2015 Date of orders: 24 December 2015 Decision date: 24 December 2015 Jurisdiction: Class 2 Before: Fakes C Decision: See [34] Catchwords: TREES [NEIGHBOURS] Damage to property; compensation; retaining wall; extent of rectification Legislation Cited: Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Category: Principal judgment Parties: Owners Corporation of Strata Plan 52066 (Applicant) Mr M Erlikh (First respondent) Ms V Erlikh (Second respondent) Mr R Wang (Third Respondent) Representation: Counsel: Applicant: Ms J Reid Respondents: Dr S Berveling

Solicitors: Applicant: G & B Lawyers Respondents: Comino Prassas File Number(s): 20604 of 2015

Judgment 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of three trees growing on the respondents' property and the rectification of a sandstone retaining wall and staircase located on the common property of the applicant's Bellevue Hill premises. 2. The trees in question are growing in the south-western corner of the respondents' property in close proximity to the common boundary. Tree 1 is a mature Ficus microcarpa var. hillii (Hill's Weeping Fig), Tree 2 is a dead Eucalypt, and Tree 3 is a mature Cupressus sempervirens (Italian Cypress). An Avocado (Persea americana) is shown on the plans as Tree 4, however its removal is not sought. 3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (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. This test must be applied to each tree the subject of an application. In this case injury is not pressed. 2. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ at [179] notes that in order to engage the Court's jurisdiction, it will be sufficient if the tree is "a" cause of the damage. 3. The damage said to have been caused by the trees is the displacement of sandstone stairs leading from the applicant's driveway to a building elevated above parking spaces along the rear north-eastern boundary of the applicant's property, the displacement of a section of the sandstone retaining wall on the northern boundary and the displacement of an adjoining brick pier. 4. The parties each engaged their own arborists and engineers to provide expert reports or otherwise assist the Court; for the applicant: Mr Peter Castor (Arborist), Mr Mark Manning (Structural Engineer) and Mr Andrew Gibson (Licenced Builder); for the respondents: Ms Catriona Mackenzie (Arborist) and Mr Pak Liu (Structural Engineer). 5. While an option for the retention of T1 was canvassed during the hearing, all experts agree that Tree 1, the Fig, is a cause of the damage to the wall and should be removed. The engineers consider that T2 has contributed to the damage. Mr Liu raises no issue with T3; however Mr Manning states that while he has no specific comments to make in regards to the impact on the wall from T3 and T4, he would require more information on the size of the structural root systems at maturity in order to do so. 6. The arborists agree that regardless of whether Tree 2 may or may not have contributed to the damage, it should be removed on safety grounds. Mr Castor notes that under Woollahra Council's Tree Preservation Order, dead trees do not require the consent of council for their removal. While there is some debate as to the contribution of Tree 3 to the damage, the arborists agree that its amenity and appearance will be compromised by the removal of T1 and T2 but its future should be left for the third respondent, the new owner of the property, to decide whether or not to apply to council for its removal. 7. On the basis of the expert evidence and on the observations made on site, I am satisfied that T1 and T2 are likely to have caused damage to the applicant's property and that T1 could continue to do so. I am not satisfied on the evidence that T3 has caused, is causing, or could in the near future cause damage to the applicant's property. Notwithstanding the finding in regards to T3, as s 10(2) is met for two of the trees, the Court's powers to make orders under s 9 are engaged. 8. While the parties agree that Trees 1 and 2 should be removed, they disagree on the scope and extent of the restoration of the retaining wall and stairs and the apportionment of the cost of remediation. 9. Before making final orders, it is necessary to consider relevant matters in s 12 of the Trees Act, in particular s 12(h). 10. Based on a search of previous development applications, the best estimate is that the wall was constructed between 1928 and 1938. 11. The retaining wall is described by Mr Manning in his report dated 4 July 2015 and included with the application and claim form (exhibit A) as a gravity sandstone block and mortar type. He notes that there has been mortar loss over time to some of the vertical joints and that there is evidence of repatching. Mr Manning states that the sandstone stairs and the section of the wall to the buttress at the north-eastern end of the first bay exhibit a lean and bowing. He states that the retaining wall movement has been large enough to cause the failure of a brick pier near the staircase. In Mr Manning's opinion the bowing and displacement of these structural elements has been caused by lateral pressure exerted by the roots of T1 and T2. 12. Mr Liu, the respondents' engineer, inspected the wall and reviewed material supplied to him. His report dated 11 October 2015 is included in Exhibit 1. In effect, Mr Liu agrees with Mr Manning that the retaining wall is a stone gravity wall of approximately 3m high and extends 18m to the east from the stairs. He considers that the damage due to the root growth of T1 and T2 is limited to the stone wall below the stairs and its return at the top of the stairs. Mr Liu shares Mr Manning's opinion that the movement also caused the brick pier in front of the stairs to buckle. 13. Just prior to the hearing Mr Liu prepared an alternative and more limited scope of works which was costed by AM Remedial Building Services (Exhibit 3). This proposes removal and replacement of only the most displaced sections of stairs and adjoining walls and removal and replacement of the nearby brick pier. 14. During the hearing the experts agreed that the remainder of the wall is also showing signs of mortar loss and movement. Mr Liu considered the eastern end of the wall to be affected by settlement of the footings/foundations; elsewhere he opined that apart from age, soil pressure and water movement would also have contributed to the overall condition of the wall. He maintains that overall the wall is structurally sound. Mr Liu noted that the gaps in the mortar assist the movement of water through the wall. 15. Mr Manning considers that about 15% of the deterioration of the wall could be attributed to its age. 16. Both engineers discussed the condition of the building supported above the wall, but both experts consider that this has had little impact on the condition of the wall. They agree that when the wall is repaired some propping of the structure will be required. 17. As stated above, the difference between the parties is how much of the wall should be repaired and how much each party should contribute. The parties were advised that when factors other than a tree that have contributed to the damage, some apportionment of the cost of remediation works is usual. 18. During the hearing the engineers agreed that the section of the wall behind the stairs, shown in Figures 1and 3 (Annexure A) , and the stairs shown in Figure 1 and inclusive of a toothed section of wall adjoining the back of the stairs, shown on the left hand side of Figure 2, should be rebuilt. The difference between the parties is that Mr Manning considers that the section of wall in the first car parking bay to the east should be rebuilt to the toothed section on the right hand side of Figure 2. It was also agreed that any rectification of the wall should not commence within 12 months of the removal of trees 1 and 2 in order to enable some resettling of the soil behind the wall. 19. At the conclusion of the hearing, given the differences between them, the parties were directed to prepare draft orders and a scope of works to assist me in my final determination. 20. Unsurprisingly, the parties have come back with significantly different options and apportionment of costs of repair. 21. The applicant presses the full extent of the works recommended by Mr Manning and reimbursement of 85% of the costs of repair. The applicant's scope of works is detailed and necessitates substantial footings and excavation. 22. The respondents have proposed the alternative and more limited replacement of displaced stonework put forward by Mr Liu in Exhibit 3 and a contribution by the first and second respondents of 15% of the costs of repair.