Land and Environment Court New South Wales Medium Neutral Citation: St Clair v Kilham [2018] NSWLEC 1071 Hearing dates: 20 December 2017 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is upheld. (2) Gaye Lesley Kilham is joined as the Second Respondent in these proceedings. (3) Within 30 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably qualified and experienced structural engineers, with appropriate professional indemnity insurance, for designing and specifying a wall to replace the existing boundary wall from Pier 1 to Pier 7, using similar or equivalent materials. (4) The cheapest quote from (3) is to be selected, unless the parties agree on another of the quotes. (5) Within 45 days of the date of these orders the applicant is to engage and pay for the selected engineer from (4) to design and specify the construction of the replacement wall (Pier 1 to Pier 7). (6) Within 90 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably experienced contractors, with appropriate insurances, for demolishing the existing wall and building the replacement wall as specified. Each quote must show separately the amounts for demolishing and constructing Pier 1 to Pier 4, and Pier 4 to Pier 7. (7) The cheapest quote from (6) is to be selected, unless the parties agree on another of the quotes. (8) Within 120 days of the date of these orders the applicant is to engage and pay for the selected contractor from (7) to demolish the existing wall (Pier 1 to Pier 7) and construct its replacement. (9) Within 14 days of receiving copies of receipted invoices for the engineer's design (see order (5)) and the contractor's demolition and construction (see order (8)), the respondents are to pay the applicant 50% of the engineer's invoice, 50% of the cost of demolishing and building Pier 4 to Pier 7 of the wall, and 60% of the cost of demolishing and building Pier 1 to Pier 4 of the wall. (10) If the respondents do not receive receipted invoices for the works within 6 months of the date of these orders, order (9) lapses. (11) Liberty to relist on 7 days' notice for the purpose of working out these orders. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; root damage; boundary wall; whether roots caused damage to the entire wall; Dividing Fences Act; orders for replacing the boundary wall. Legislation Cited: Dividing Fences Act 1991 No 72 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Paul St Clair (Applicant) Henry Kilham (First Respondent) Gaye Kilham (Second Respondent) Representation: B Campbell (solicitor) (Applicant) H Kilham (self-represented) (Respondents) Fox & Staniland Lawyers (Applicant) File Number(s): 2017/00308287 Judgment Background 1. On sloping land in Sydney's Northbridge, neighbours the St Clairs (Paul St Clair is the applicant) and the Kilhams (the respondents) share a common boundary. Along this boundary a 90-year-old retaining wall leans, to varying degrees, into the applicant's property, which is downslope of the respondents'. The wall is apparently on this boundary – a side boundary for each property – with its ownership shared by the parties. At their front boundaries the wall is less than a metre tall; near the rear of the applicant's dwelling it is approximately two metres tall. 2. On the St Clairs' property a path adjacent to the retaining wall leads from the front boundary, along the narrow corridor between their dwelling and the retaining wall, and on to the rear part of their property. At the front of the house the path was lifted and cracked, and a section has now been removed. 3. At the front of the Kilhams' property a narrow garden bed separates the boundary wall from their driveway. They had planted three Australian native trees in this space. The trees grew to some 8 metres in height. Due to the ongoing dispute about the boundary wall, and having received arboricultural advice that one tree in particular might damage the wall, the Kilhams removed these three trees in late 2016 (T1) and 2017 (T2 and T3). 4. Three large gum trees grow in the respondents' front garden, further upslope from their driveway, which has its own small retaining wall along its upper side. This wall and the driveway show no damage. The applicant alleges that the two largest gum trees have contributed to the boundary wall's damage. Of these three trees, the third gum tree, though a bit smaller, is closest to the wall, but is not part of this application. The application Orders the applicant seeks 1. Mr St Clair has attempted to reach some agreement with the Kilhams regarding repair works and compensation. The Kilhams offered to contribute some money to any necessary wall repairs, but the St Clairs did not accept the offer. In October 2017 Mr St Clair applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) seeking the following orders: 1. That the respondents pay compensation of $72,405 to the applicant for replacing and painting the retaining wall, replacing the path, and replacing and painting a wrought iron gate. The orders sought initially included no requirement for the applicant to carry out these works, but were qualified during the hearing to include such an order. 2. Costs of these proceedings. 1. A further order, for the respondents to install dished drains as required by a 1980 building permit, was not pressed after I asked the applicant where I might find the jurisdiction in the Trees Act for this. 2. Only the Registrar or a Judge of the Court can determine the application for costs, so should the applicant wish to pursue costs he will need to file a further Notice of Motion. Joinder of the second respondent 1. The application named only Henry Kilham as the respondent. He sought leave for the joinder of his wife Gaye Kilham, co-owner of their property, as the second respondent, and this was granted. Expert witnesses 1. Mr St Clair engaged an engineer, Michael Grogan of Birzulis Associates, and an arborist, Sam Allouche of NSW Tree Services, to provide expert evidence. The Kilhams also engaged an engineer, Warwick Davies of Davies Geotechnical. All three experts provided written reports and gave oral evidence at the onsite hearing. Framework of the Trees Act 1. According to s 10(2) of the Trees Act, if I am satisfied that a tree subject to the application has caused damage to the applicant's property, I have the jurisdiction to make appropriate orders pursuant to s 9 of the Act after considering a range of matters set out at s 12. The purpose of any orders is to remedy, restrain or prevent the damage. Situation Trees 1. The Kilhams' three trees along their narrow garden bed next to the boundary wall were, according to Mr Allouche, a red cedar (T1), a leptospermum (T2) and a bottlebrush (T3). Mr Kilham said he planted the red cedar over a decade ago, and the others many years earlier. All three were removed over a year ago. Their removal does not thwart any jurisdiction arising if I find they caused damage: s 4(4) of the Trees Act. 2. The two mature gum trees further from the wall appear healthy and structurally sound. Path 1. Mr St Clair's application includes compensation for their damaged path. Mr St Clair has not identified which trees have caused the damage. 2. Despite the presence of several experts, some relatively straightforward investigation remains undone. Some roots are exposed beneath the path. The experts suggested during the hearing that root identification should or could be done to determine the roots' origins, but no such study has been done. 3. On page 9 of his report Mr Allouche asserts that "…it is highly likely that the wall has contained all roots." He does not believe the roots are from the Kilhams' trees. During the hearing he said that the roots have the appearance of fig tree roots. Mr Davies also suggested, at p 3 of his April 2016 report, that roots from a fig tree have damaged the path, although he does not clearly explain how he reached this conclusion. The parties disagree on whether there was ever a fig tree in the St Clairs' front garden. Regardless, I am not convinced by any of the statements made about these roots. I cannot be satisfied, to even the faintest degree, of the origins of these roots. It follows that this element of the application must be dismissed. Gate 1. Mr St Clair's compensation claim includes replacement of a wrought iron gate. He says the gate, which was between the wall and their dwelling, no longer functioned once the wall was displaced. I was not shown the gate and no evidence was adduced regarding its condition or any causation. I cannot be satisfied that its damage was caused by any tree, so this element of the application is also dismissed. Boundary wall 1. There is a fair degree of confluence in the evidence of the two engineers. They both divide the wall into two distinct sections, each with separate issues and causes of displacement: the front section consisting of pier 1 to pier 4, and the rear section from pier 4 to pier 7. A further section of wall beyond pier 7 appears undamaged. 2. They agree that the rear section of wall initially experienced 'toe bearing failure', which Mr Davies says is common for walls of this type and age. He says water seepage, above- and below-ground, has softened the naturally weak sandstone stratum at the wall's foundation. He says the wall is inadequate for its purpose, being too thin in cross-section and probably having insufficient drainage, and so once its foundation layer was softened it easily rotated. 3. The engineers agree that this rotation created a gap between the wall and soil, allowing more water infiltration, especially any surface water, further increasing the degree of rotation. Various suggestions were made regarding the source of additional water flow, including leaks from the Kilhams' pool or pump, stormwater overflow, and construction of the Kilhams' garage. Despite some weight being given these issues in the application, I regard them as largely irrelevant as there is no way of separating their additional impacts, if any, from those of any natural water flow. 4. The engineers' explanations diverge further when identifying the cause of rotation for the front section of the wall. Mr Grogan finds that tree roots are likely to be a major contributing factor. Mr Davies, on the other hand, finds the main contributing factors are the wall's age and inadequate design, deteriorating bearing conditions, lack of drainage, and earth pressure and hydrostatic pressure behind the wall. He says root growth is a possible cause but this has not been demonstrated. He says it would be rare for a wall of this type and age not to show some degree of failure. 5. Mr Grogan then drew some possible causation by trees to damage of the wall's rear section, by suggesting that if roots first caused rotation of the front, this might have led to some slight rotation of the rear section, sufficient to open the gap between soil and the wall at its top, allowing water ingress. Findings regarding the wall 1. The stumps of trees T1, T2 and T3 can still be seen, less than one metre from the wall. No digging has been done to uncover and show roots growing against the wall, although such investigation would be relatively straightforward. Relying to some extent on my own expertise and experience, I am of the view that, on the balance of probabilities, the root crowns of these trees were likely to put pressure on the wall, either through direct contact, or by compressing any soil that remained between them and the wall. I also accept Mr Davies' findings that other contributing factors include the tree's age, its inadequate design, poor drainage and deteriorating foundation. 2. I could not see any indication onsite that the more distant gum trees T4 and T5 have contributed to any damage of the wall. There was also nothing in the experts' statements that would lead me to be satisfied of this. 3. Because I am satisfied that T1, T2 and T3 are a cause of damage to the wall, I can make orders for this element of the application. Consideration of other contributing causes will go to apportionment of any repair costs. Given the lack of investigation and limited evidence, this is inevitably an exercise in gross approximation. In general, the engineers' evidence leads me to the view that, without any influence from the trees, the wall would still probably require replacement or major works in the foreseeable future. I will apportion any costs of repairs to the front section of the wall 60% to the respondents and 40% to the applicant. 4. I am not persuaded by Mr Grogan's suggestion that rotation of the wall's front section may have caused sufficient rotation of the rear section, leading then to its damage too. This hypothesis is not promoted by any evidence. As Craig J stated in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], "…something more than a theoretical possibility is required in order to engage the [Court's] power under the [Trees Act]". 5. I asked the engineers whether the wall needed repair or replacement, and how soon this was needed. Mr Grogan emphasised that the rear section of the wall needs replacement, not repair, and that due to its condition it should be done sooner rather than later. He thought the front section might remain functional for only a few years before it too would need replacement. Mr Davies did not express an opposing view. 6. When the Court is making orders within the Trees Act regarding a damaged fence, the Dividing Fences Act 1991 No 72 (NSW) allows the Court to also make orders for other parts of the fence that have not been damaged by the tree. So although I find no causation by the Kilhams' trees for the damage at the rear section of the boundary wall, Mr Grogan's evidence convinces me that I should make orders for both sections of wall. Unlike the front section, I see no need to apportion costs for the rear section other than 50% to each property. 7. Mr Kilham argued that the amount of compensation sought in Mr St Clair's application is an ambit claim and suggested that the works could be done for much less. The parties will be given the opportunity to obtain quotes for demolishing and replacing the wall. If they cannot agree on one of the quotes they are to select the cheapest. Given the nature of the wall it will require specifications from a structural engineer, the cost of which will be equally shared by the parties. 8. I refer the parties to s 6(3) of the Trees Act concerning the effect of orders under Part 2 of the Act despite the usual requirement for council consent or authorisation. Orders 1. As a result of the foregoing, the orders of the Court are: 1. The application is upheld. 2. Gaye Lesley Kilham is joined as the Second Respondent in these proceedings. 3. Within 30 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably qualified and experienced structural engineers, with appropriate professional indemnity insurance, for designing and specifying a wall to replace the existing boundary wall from Pier 1 to Pier 7, using similar or equivalent materials. 4. The cheapest quote from (3) is to be selected, unless the parties agree on another of the quotes. 5. Within 45 days of the date of these orders the applicant is to engage and pay for the selected engineer from (4) to design and specify the construction of the replacement wall (Pier 1 to Pier 7). 6. Within 90 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably experienced contractors, with appropriate insurances, for demolishing the existing wall and building the replacement wall as specified. Each quote must show separately the amounts for demolishing and constructing Pier 1 to Pier 4, and Pier 4 to Pier 7. 7. The cheapest quote from (6) is to be selected, unless the parties agree on another of the quotes. 8. Within 120 days of the date of these orders the applicant is to engage and pay for the selected contractor from (7) to demolish the existing wall (Pier 1 to Pier 7) and construct its replacement. 9. Within 14 days of receiving copies of receipted invoices for the engineer's design (see order (5)) and the contractor's demolition and construction (see order (8)), the respondents are to pay the applicant 50% of the engineer's invoice, 50% of the cost of demolishing and building Pier 4 to Pier 7 of the wall, and 60% of the cost of demolishing and building Pier 1 to Pier 4 of the wall. 10. If the respondents do not receive receipted invoices for the works within 6 months of the date of these orders, order (9) lapses. 11. Liberty to relist on 7 days' notice for the purpose of working out these orders. ____________________________ D Galwey 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 February 2018