McGee & anor v Qiu & anor [2016] NSWLEC 1117

Land and Environment Court New South Wales

Medium Neutral Citation: McGee & anor v Qiu & anor [2016] NSWLEC 1117 Hearing dates: 1 April 2016 Date of orders: 01 April 2016 Decision date: 01 April 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted in part Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; brick retaining wall; tree approved for removal by council; apportionment of compensation. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Cincotta v Huang & ors [2011] NSWLEC 1086 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thornberry & anor v Packer & anor [2010] NSWLEC 1069 Category: Principal judgment Parties: Robin and Jannice McGee (Applicants) Tao Qiu and Jing Liu (Respondents) Representation: Applicants: Mr D Loether (Solicitor) Respondents: Ms M Woo (Agent)

Solicitors: Applicants: Bartier Perry File Number(s): 20140 of 2016

Judgment 1. COMMISSIONER: In 1981 the applicants constructed a retaining wall along the rear boundaries of their Mosman property. The wall is built from sandstock bricks, circa 1840, salvaged from the demolition of an old home in Darlinghurst. The applicants contend that a portion of the wall on the south-eastern corner of their property has been damaged to the point of structural failure by a Jacaranda growing in the north-eastern corner of the adjoining property. They are also concerned about the risk of injury as a consequence of the condition of the wall and because of several large branches which overhang their rear garden. 2. The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for the following orders as summarised: * Removal of the tree, at the respondents' expense, within 30 days. * The dismantling and rebuilding of 8m2 the damaged section of wall; including, if necessary, new footings; at the respondents' expense (approximately $8,250.00). * The respondents to pay the applicants' costs, including legal costs and the cost of an engineer's report. 1. In regards to the last element of the claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. I was advised that the applicants do not press this order. 2. The tree is a healthy, mature specimen planted close to the common boundary. As it has grown, the trunk has expanded to within about 100mm of the boundary. The ground level at the rear of the respondents' property is elevated approximately 1m above the ground level at the rear of the applicants' property. The wall extends above ground level and forms the applicants' perimeter fence. There is a timber paling fence on the respondents' side. Due to the displacement of the wall, there is a clear gap between the wall and the fence. 3. As the respondents have permission from Mosman Council to remove the tree, the first order is no longer pressed. [It is worth noting that the respondents received permission to remove the tree in August 2015 however some difficulties with the former tenants prevented this happening as originally scheduled. As the tenants have vacated the property the tree is scheduled to be removed by mid April 2016.] 4. 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. In support of their claim, the applicants have included a report from a structural engineer they engaged to assess the structural integrity of the wall. The engineer inspected the wall on 25 May 2015; his report is dated 28 May 2015. The report includes photographs of the damaged sections of the wall. The engineer describes the damage, notes the proximity of the tree, and concludes that it has caused the damage and there is a moderate risk of the wall failing. He recommends the damaged section be rebuilt to current standards after the removal of the tree. 2. The engineer's report provides no particular assistance as the damage he describes is clearly visible to anyone. However, it does provide an opinion from someone with the appropriate qualifications to comment on the state of the wall. The report does not include any comments on any other likely causes including the construction method, age of wall, soil and water pressure etc. 3. Notwithstanding the limitations of the engineer's report, I am satisfied on the basis of my observations on site that the tree is highly likely to be a cause of the damage to the adjoining section of the wall. However, there would appear to be other factors that have affected the stability of other sections of the wall but the applicants have not included these sections in their claim. 4. On this basis I am satisfied to the extent required by s 10(2) that the tree has caused damage to the wall and will continue to do so if the tree is not removed. 5. The only matter to be determined is the amount of compensation payable by the respondents. 6. The application claim form includes correspondence and other statements that indicate that the applicants advised several former owners of the respondents' property of the state of the wall and the likely influence of the tree on it. 7. It was confirmed during the hearing that a crack in the brickwork appeared about four years ago. The owner of the respondents' property at the time was advised. He is reported to have said that he would organise an engineer to inspect the wall but this did not eventuate. One year later the property was sold; that person owned the property for two years, was advised of the damage and was asked by the applicants to let the new owners know of the problem. About one year ago the respondents in this matter purchased the property. In July 2015 the applicants discussed the matter with the respondents. In August 2015 the respondents obtained permission to remove the tree, however, as stated above, this was delayed through the actions of the tenants. It would appear that the extent of the damage has increased in the last year. 8. As discussed in Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5], an application for compensation for damage to an applicant's property as a consequence of a tree growing on adjoining land must be made against the owner of the tree at the time the damage occurred. If a property has changed hands over the period in which the damage is said to have occurred, an applicant may seek to join the former owners (see Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 and Cincotta v Huang & ors [2011] NSWLEC 1086). However, this course of action has not been pursued by the applicants. 9. During the hearing the parties agreed that the respondents contribute 30% of the cost of rectification of a portion of the wall identified in the photograph in Annexure A to this judgment and orders. A timetable was agreed and the orders agreed. 10. Given the agreement of the parties, the Orders of the Court are: 1. By 19 April 2016, the Respondents are to engage and pay for an arborist with a minimum AQF Level 3 qualification in Arboriculture to remove the Jacaranda Tree (identified at T1 on the plan annexed to the Tree Dispute Claim Details filed 22 February 2016 located at the north-eastern corner of 19 Euryalus Street, Mosman) to ground level and to poison the stump. 2. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 3. The parties are to provide reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of work for the purpose of these Orders. 4. As soon as practically possible, the Applicant is to have removed that section of the existing Sandstock Brick Wall located at the south east corner of the Applicants' property adjacent to the Respondents' property boundary which poses an imminent risk of failure. 5. By 1 May 2016, the parties are to each obtain a formal quotation from a suitably qualified and licensed contractor for the removal and reconstruction of that part of the existing Sandstock Brick Wall located at the south east corner of the Applicants' property adjacent to the Respondents' property boundary as shown on the photograph that is Annexure "A" to these Orders, comprising: 1. Dismantling of old sandstock bricks in damaged section of wall, remove broken bricks and source replacement of sandstock bricks; 2. Construction of new footings if and where required as determined by brickwork specialist or structural engineers; 3. Rebuild brick wall with the original conserved sandstock bricks, together with old replacement sandstock bricks. 1. The parties are to exchange quotations for the works required to be undertaken pursuant to Order 5 above. Following exchange of quotations, the parties are to agree on the engagement of one contractor to carry out the required works. 2. Any additional works required to be undertaken by the Applicant with respect to the existing Sandstock Brick Wall located at the south east corner of the Applicant's property that are not the subject of the works required to be undertaken pursuant to Orders 4 and 5 above are to be separately itemised and are to be undertaken and paid for the Applicant. 3. The Respondents are to reimburse the Applicants 30% of the cost of all works undertaken in accordance with Orders 4 and 5 above within 21 days of receipt of a tax invoice for the completed work. ____________________________ Judy Fakes Commissioner of the Court 20140 of 2016 Annexure A (249 KB, pdf)