Land and Environment Court New South Wales Medium Neutral Citation: Thomas & anor v Holmes & Anor (No 2) [2017] NSWLEC 1443 Hearing dates: 20 July 2017 Date of orders: 16 August 2017 Decision date: 16 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [37] Catchwords: Notice of Motion: amendment of orders made in regards to a tree dispute between neighbours Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Thomas & anor v Holmes & anor [2017] NSWLEC 1192 Texts Cited: Nil Category: Procedural and other rulings Parties: Peter Thomas (First Applicant) Amatrin Pty Ltd (Second Applicant) Glenn Holmes (First Respondent) Kimberley Holmes (Second Respondent) Representation: First Applicant: Peter Thomas (Litigant in person) Second Applicant: Jenkin Thomas (Agent) First Respondent: Glenn Holmes (Litigant in person) Second Respondent: Kimberley Holmes (Litigant in person) File Number(s): 386285 of 2016 Publication restriction: No Judgment 1. COMMISSIONER: In December 2016 the applicants filed a Class 2 application with the court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). The application was made on the applicants' contention that roots from a Eucalyptus robusta (Swamp Mahogany) growing on the respondents' property had caused damage to stairs, a stormwater pipe – leading to subsequent drainage issues, a masonry retaining wall, a portico supported by the retaining wall, and a treated pine log wall near the displaced stairs; all structures located within an easement to which the applicants have a legal right. 2. The application sought orders for the removal of the tree, rectification of the damage allegedly caused by the tree to the nominated structures, compensation of $44,713 for money spent and quotations for rectification, access to the respondents' land and replacement of the dividing fence. The applicants sought the cost of undertaking all orders to be at the respondents' expense. The $44,713 originally sought included a quote from a Mr Andy Walsh dated 10/10/2016 to rebuild/ repair the stairs, retaining wall [apparently both masonry and log walls] and portico for a sum of $30,965 including GST. 3. The respondents objected to the orders and wished to retain the tree. Material in the respondents' evidence indicated that drainage, in particular, had been an issue for a long time, perhaps since 1989. The respondents' view was that the masonry wall had not been constructed in accordance with relevant plans and was substandard and not fit for purpose. 4. I heard the case on site on 27 March 2017. The applicants were represented by counsel; the respondents were self-represented. The alleged damage was inspected. Both parties tendered evidence. Given the volume of material and the inability of the parties to reach any common ground, the hearing was adjourned and the judgment reserved. The evidence was considered and assessed against the jurisdictional tests provided in the Trees Act. The judgment was handed down on 11 April 2017 and orders made (see Thomas & anor v Holmes & anor [2017] NSWLEC 1192 (the judgment)). 5. The orders I made on 11 April 2017 are as follows: 1. The application to remove the tree is dismissed. 2. Within 30 days of the date of these orders, the applicants are to engage and pay for a suitably qualified engineer/ architect/ landscape architect to design a masonry retaining wall and section of stairs as described in paragraphs [44] and [45] above. The respondents are to be provided with a copy of the designs. 3. Within 60 days of the date of these orders the parties are to have obtained and exchanged up to two quotes each for the costs of implementing the designs for the stairs and retaining wall. In addition, in the event that the tree is removed, the quote for the stairs is to include an option of replacement of the existing pavers, that is, like for like. If there is no agreement as to the choice of contractor, the cheapest quote is to be selected. Any additional works beyond the wall and the section of stairs are to be separately itemised and quoted and to be paid for by the relevant party. The applicants are to engage and pay for the nominated contractor. 4. The works in (2) are to be completed within 120 days of the date of these orders otherwise order (5) lapses. 5. Within 21 days of the receipt of a tax invoice for the completed works, the respondents are to reimburse the applicants 90% of the agreed cost of the stairs and 60% of the agreed cost of the wall. 6. The parties are to provide all reasonable access on reasonable notice for the purpose of quoting and the construction of the works in (2). 7. The exhibits except A are returned. 1. As stated above, the orders were made on the basis of the application and evidence before me. As considered in [30] of the judgment, some of the $44,713 sought in compensation was for expert reports and investigative work; Commissioners do not have the jurisdiction to order payment of these costs. 2. The applicants filed an Amended Notice of Motion (NOM) on 9 May 2017. Order 1 of the NOM seeks to set aside or vary orders (2)-(5). The NOM was heard by Moore J on 15 June 2017 and orders made. Order 1 sets aside judgement orders (2)-(5). Other orders provide a timetable and instructions for the filing of any additional material the parties wish to rely upon. The motion to vary the orders was heard in court on 20 July 2017. The parties, who represented themselves, were heard and the decision reserved. 3. Since the making of the Orders on 11 April, the applicants have engaged the services of a structural engineer Mr Karl Diskoros of Diskoros Engineering to prepare plans for the reconstruction of the retaining wall and steps. These plans significantly extend the scope of works considered during the original hearing and include structures and sections of stairs for which there was no evidence of any interference by the roots of the respondents' tree. The extent of those newly proposed works will require the lodging of a Development Application with North Sydney Council. Mr Diskoros assisted the Court by providing evidence and an explanation of the proposed plans. 4. Specifically, the new plans prepared on the applicants' instruction by Mr Diskoros show the full reconstruction of the entire stairway, the reconstruction of the subject section of lower masonry wall in a new location along the boundary (and thus closer to the tree), and the replacement of the treated log retaining walls on the north-south run of stairs with full masonry walls on engineered footings (NOM Exhibit A). The preliminary quotation for the proposed works, not including any variations, is $68,000 for the stairs, $110,000 for retaining walls, $7,500 for other costs such as electrical, painting, rubbish removal plus GST to a total of $186,500 (NOM Exhibit C). The applicants submit that the respondents' contribution to the design, based on their interpretation of the orders, is $4,561.36 (NOM Exhibit B). 5. Despite the orders given by Moore J on 15 June, the applicants handed up their Draft Orders, comprising 22 detailed orders, during the hearing on 20 July. Neither the respondents nor the Court had been provided with an opportunity to read them. Apart from the procedural unfairness of this, the proposed orders extend the scope of works and introduce new issues which were not raised during the hearing and or, on the face of it, are beyond the court's jurisdiction under the Trees Act. To that end, the draft orders were not allowed. 6. Given the significantly different proposed scope of works, it is necessary to consider the scope of the Class 2 application and the evidence upon which the original orders were made. 7. In determining applications under s 7 Part 2 of the Trees Act, the key jurisdictional test which must be met before the Court's powers to make orders are engaged 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 this matter, injury was not pressed. As considered in the judgment at [5], there must be more than a theoretical possibility of damage and the tree need only be a cause of damage in order to satisfy s 10(2)(a). That is, there must be clear evidence of the nexus between the tree the subject of the application and the structure or property allegedly damaged by that tree. 2. The judgment considered the relevant evidence for each of the nominated structures. Section 10(2)(a) was applied to each structure and findings made. 3. For the reasons given in the judgment, I dismissed the claims regarding the portico and the dividing fence. 4. Relevantly, [13] describes the two retaining walls nominated by the applicants and inspected during the hearing. The masonry wall in question is the partially demolished brick wall at the base of the stairs, including the short return to the gate post, on the south-western side of the pedestrian entrance off Cowdroy Avenue. The section of masonry wall is opposite the wall of the garage. This section is clearly shown in photographs included in the application claim form (Exhibit A in the original proceedings) and is approximately 3.2m in length. The treated pine log wall is described in [18]. The alleged damage to the lower western section of the log wall, in the vicinity of the steps removed by the applicants, is described as an outwards displacement. The applicants rely on the contrast in condition between the similar timber retaining walls on the eastern side of the stairs. 5. The section of stairs under consideration is an approximately 2.5 m section of paved stairs removed by the applicants during their investigations prior to the hearing. The section is roughly midway up the north-south set of stairs. The stairs were constructed about 25-30 years ago. The soil on either side of the removed section is retained by treated pine logs. 6. On the evidence before me, I found: insufficient evidence to find that the tree had contributed to the displacement of the section of timber retaining wall (at [34]); sufficient evidence that a large woody root had displaced the section of stairs which have been removed; and, evidence that roots of the tree were a cause of the damage to the wall. Additionally I was sufficiently satisfied that a root had caused a minor displacement of a small section of stormwater pipe located behind the section of masonry wall. I also determined at [41] that amongst other things, the original masonry wall had not been built in compliance with the original plans and had not been constructed as a retaining wall and thus factors other than the tree had contributed to the cracking in the wall. 7. As a consequence of those findings and the relevant tests in s 10(2)(a) being met, the Court's jurisdiction to make orders under s 9 of the Trees Act was engaged. The making of orders also requires consideration of relevant clauses and discretionary matters in s 12 of the Act. These are dealt with in [38]-[42]. 8. I determined there was no evidence to justify the removal of the tree under the Trees Act, however the respondents were provided an opportunity to apply to council should they wish to remove the tree. Further, as stated in [43], in recognising the respondents' strong desire to retain the tree, I made a number of conclusions which were subsequently incorporated into the orders. 9. Relevantly, included in the respondents' bundle of evidence (Exhibit 1 in the original proceedings) were a number of sketch plans indicating means by which the wall and the stairs could be rebuilt to accommodate the retention of the tree and avoid damage to the large woody roots exposed beneath the section of stairs. Absent any alternative design to enable tree retention these are referred to in those conclusions. 10. In regards to the lower retaining wall I wrote at [44]: 44 Should the respondents elect to retain the tree orders will be made for the reconstruction of the lower masonry retaining wall in a manner generally consistent with the sketch plan on p 23 of Exhibit 1. The respondents are to contribute 60% of the cost of the construction excluding design and certification which is to be at the applicants' cost. The apportionment of contributions reflects my findings on other likely contributory factors. The rectification of the wall is to include the installation of a solid/ reinforced conduit through which the lower portion of stormwater pipe can be directed. 1. That is, the applicants were to meet the full cost of the design and certification of the lower retaining wall. 2. At [45], in respect of the stairs, I concluded: 45 Orders will also be made for the design and installation of stairs to replace the removed section identified in the photographs, on the survey prepared by Geoffrey Browne, Surveyor on 12.02.1016 (included in the application claim form) and on site during the hearing. The stairs are to be designed and installed to bridge all woody roots in that section of 50mm or greater in diameter and to make allowance for their expansion; the stairs need not necessarily be of the same material as the original stairs but must be durable and functional. That is, no roots of 50mm or more in diameter are to be cut. The respondents are to pay 90% of this work, including design. Any rectification of the adjoining timber retaining wall will be at the applicants' expense. The discount is on the basis that the extent of paving removed exceeds the area affected by the roots. 1. I am satisfied that the scope of works outlined in the original judgment and the orders fairly and accurately describes the limited sections of both retaining walls and paving for which there was evidence of any interference by roots of the respondents' tree. Such evidence being necessary to engage the Court's jurisdiction in response to that interference. However, I also accept that there may be some confusion in the wording of the orders made on 11 April 2016. To that end, the applicants have successfully sought to set aside Orders (2)-(5). Consideration of what should be amended follows. 2. Original Order 2 required the applicants to engage and pay for a suitably qualified engineer or other appropriate professional to design the sections of masonry wall and stairs described in [44] and [45] of the judgement. As discussed above, this was the limit of the original application and of the Court's jurisdiction. Specifically: * The scope of the work for which the respondents are to make a contribution is strictly limited to the lower masonry retaining wall and to the 2.5 m section of stairway identified in the photographs and on the survey prepared by Geoffrey Browne, Surveyor on 12.02.1016 (included in the application claim form) and on site during the hearing. * The lower masonry retaining wall is to be rebuilt to current industry standards in its current location and incorporate a means of protection for the stormwater pipe. * The section of stairs is to be designed and installed to bridge all woody roots in that section of 50mm or greater in diameter and to make allowance for their expansion; the stairs need not necessarily be of the same material as the original stairs but must be durable and functional. That is, no roots of 50mm or more in diameter are to be cut. 1. The actions of the applicants in regards to the orders I made on 11 April 2017, are summarised in [8] and [9] above. Despite Order (2) the respondents also provided the applicants' then lawyer with the design for the stairs and quotes on 9 May 2017 (pp29-33 NOM Exhibit 1). The first respondent states that the design meets the Building Code of Australia (BCA) requirements for steps and stairs; he also states that he has found a structural engineer who would be able to help the applicants with other design work, presumably for the retaining wall. The accompanying diagram of the proposed section of stairs gives dimensions and locations of piers to avoid roots. The conformation of the stairway is slightly different to the existing stairway and uses treated pine rather than pavers. The accompanying quote for supply and install, not inclusive of excavation, is $2992. During the NOM, the applicants disputed the BCA compliance and essentially object to the design and materials. 2. The respondents also provided a design prepared by a structural engineer for the section of masonry wall the subject of the original application. The wall is described as a concrete block wall, reinforced and concrete filled and incorporates the encasement of the stormwater drain. The diagram on p 34 of NOM Exhibit 1 provides for backfill and drainage and a substantial concrete footing. The design and costings were forwarded to the applicants' lawyer on 6 June 2017. A quote obtained by the respondents for the construction of the wall and stairs, as per the respondents' drawings and excluding extra back-filling and excavation in rock came in at $9,235, inclusive of GST. 3. I find that the applicants have gone beyond the limited scope of the design works and have thus not strictly complied with the order. Given the years over which this dispute has been afoot, the applicants have had ample time to fully scope the work. In my view, the plans now before the Court could have been provided during the initial hearing. I find it unreasonable that the applicants have significantly extended the scope of works for which they expect the respondents to pay. As stated above, the most helpful information available to me at the time of the original hearing were sketch plans prepared by the first respondent. That said, I am now satisfied that plans have been prepared that meet the requirement for the lower masonry wall to be rebuilt to current industry standards in its current location. I am also satisfied that the respondents' plans for the section of stairs the subject of the Class 2 Application meet the requirements given in [45] of the judgment. The applicants' proposed plans show the stairs with masonry walls on concrete footings; in my view this would result in significant damage to the roots of the tree and thus these plans do not meet the specified requirements. 4. Original Order 3 required the parties to have obtained and changed quotes. The parties have since come back with quotes they consider reflect the orders. As a consequence of the applicants' extension of the scope of works, the quotes vary considerably. As stated above, the Class 2 Application and Claim Form (Exhibit A) of the original proceedings included a quote from a Mr Andy Walsh dated 10/10/2016 to rebuild/ repair the stairs, retaining wall [apparently both masonry and log walls] and portico amounted to $30,965 including GST. The current estimate of $186,500 is over six times the original estimate. 5. I propose to amend the orders and fix the amount payable by the respondents to the applicants for both the construction of the lower masonry retaining wall and the section of stairs, with some contingency to allow for excavation and backfilling. The amount is to be set at $8,000. This is based on amounts quoted by the respondents' builders (NOM Exhibit 1, p31 and p53) plus a contingency for excavation. It incorporates the 90% responsibility for the stairs and 60% contribution to the lower masonry wall. The reasons for the discounted contribution for the wall are given in [44] of the judgment. In my view this sum bears more relationship to the figure originally obtained by the applicants from Mr Andy Walsh in October 2016. Mr Walsh's quote included other elements not found to have been damaged by the respondents' tree and are thus beyond the Court's jurisdiction to consider. 6. Notwithstanding the respondents' actions in having sought and paid for the designs of both the section of stairs and the lower masonry retaining wall the respondents are to make a contribution of $252.00 towards the design costs of the section of stairs found to have been damaged by the tree. This figure is based on the amounts in the 'Applicants' Design Cost Under Judgment' (NOM Exhibit B), specifically the Tax Invoice dated 12 June 2017 from Weishu (Kevin) Ding. This invoice, amongst other items, provides a cost of $1050 for designing the new stairs and drafting. The damaged section of stairs comprises approximately 24% of the total length. The contribution is for that component. The other items of NOM Exhibit B include incidental costs such as surveying and initial consultations. 7. The completion of the construction of the lower masonry retaining wall and the replacement of the section of stairs, considered in original Order (4) will be reset from the date of the amended orders and extended to a period of 6 months. 8. As clearly stated in original Order (3), if either party wished to undertake any additional works beyond the limited scope of the works over which the Court has jurisdiction under the Trees Act, those works were to be separately itemised, quoted and paid for by the relevant party. The applicants have not included separate quotes for the significantly extended proposed works. 9. Should the applicants undertake any works other than the limited scope of the works determined to be within the Court's jurisdiction under the Trees Act and choose to a Development Application (DA), and the scope of the DA scope of the DA encompasses the works pursuant to the Trees Act, making those separate works unnecessary, then I propose to set a regime for the respondents to contribute to that expanded scope of works to the amount equivalent. The applicants are to notify the respondents of any such intention in a timely manner. 10. Regardless of whether the applicants choose to construct just the works pursuant to the Trees Act or intend to extend those works to other structures beyond the Court's jurisdiction under the Trees Act, the relevant completion dates remain as does the contribution from the respondents. The orders will be self-executing in that if the works are not completed in the set time, the orders for reimbursement by the respondents will lapse. 11. On this basis, the amended and consolidated Orders of the Court are: 1. The application to remove the tree is dismissed. 2. The applicants are to engage and pay for a suitably qualified and experienced contractor to: 1. reconstruct the lower section of partially demolished masonry wall to current industry standards and in its current location. The rectification of the wall is to include the installation of a solid/ reinforced conduit through which the lower portion of stormwater pipe can be directed; and 2. install the 2.5 m section of stairway identified on the survey prepared by Geoffrey Browne, Surveyor on 12.02.1016. The stairs are to bridge and not damage any woody roots of 50 mm or greater in diameter in that section and make allowance for their expansion; the stairs need not necessarily be of the same material as the original stairs but must be durable and functional. 1. The works in (2) are to be completed within 6 months of the date of these orders otherwise Order (4) lapses. 2. Within 21 days of the receipt of an invoice for the completion of the works in (2) the respondents are to reimburse the applicants the sum of $8,252. 3. If the works in (2) are completed as required in (3) but no invoice is served on the respondents as required by (4), the obligation of the respondents to contribute to the works in (2) lapses. 4. Should the applicants elect to undertake any works other than the limited scope of the works determined to be within the Court's jurisdiction under the Trees Act as described in (2) and choose to lodge a Development Application (DA), and the scope of the DA encompasses the works pursuant to the Trees Act, the applicants are to: 1. notify the respondents of their intention to do so within 45 days of the date of the these orders; 2. notify the respondents of the lodgement of the DA within 10 days of such lodgement; and 3. notify the respondents of the granting of development consent within 10 days of any consent. 1. The extended works the subject of any Development Consent which incorporate the scope of the works pursuant to the Trees Act are to be completed within 2 years of the date of these Orders otherwise Order (8) lapses. 2. Within 21 days of the receipt of an invoice for the completion of the approved extended works in Order (6) the respondents are to reimburse the applicants the sum of $8,252 being the respondents' contribution for the component of the works pursuant to the Trees Act. 3. If the approved extended works in (6) are completed as required in (7) but no invoice is served on the respondents as required by (8), the obligation of the respondents to contribute to the works in (6) lapses. ______________________ Judy Fakes 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: 16 August 2017