Land and Environment Court New South Wales Medium Neutral Citation: Savva v Curtis [2018] NSWLEC 1599 Hearing dates: 25 October 2018 Date of orders: 25 October 2018 Decision date: 25 October 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall – whether the tree caused the damage – other contributing factors Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Helen Savva (Applicant) Dolce Curtis (Respondent) Representation: H Savva, litigant in person (Applicant) D Curtis, litigant in person (Respondent) File Number(s): 2018/249385 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. In her back garden, Dolce Curtis ('the respondent') has a Jacaranda tree, some six metres tall. It is close to the common boundary she shares with Helen Savva ('the applicant'). 2. Ms Savva has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the tree to be removed and for a retaining wall on her property to be repaired. Mrs Curtis does not want to remove the tree. The onsite hearing 1. The onsite hearing allowed observations of the tree and Ms Savva's property. 2. The Jacaranda is healthy and without significant structural defects. It provides amenity and shade, and contributes to the landscape of Mrs Curtis' garden. 3. Ms Savva claimed in her application that a branch of the Jacaranda is pushing against the boundary fence. However, all branches are well clear of the fence and will not interfere with it in the foreseeable future. 4. Ms Savva claims debris from the tree covers the paved area of her garden, the leaves and flowers creating a slippery hazardous surface. 5. Ms Savva pointed out the retaining wall that supports a raised garden bed on her property, along the common boundary. The wall increases in height along the boundary so that it is approximately 1.5 metres tall near the Jacaranda. At its closest to the Jacaranda, the wall visibly bows out and is cracked. Ms Savva says the retaining wall is 'triple-brick'. She says the damage is caused by the Jacaranda. She says another tree grew from its roots in her own garden bed, its stem reaching some 300 mm in diameter, but she had this removed and sprayed its stump with poison. 6. Ms Savva says a Council officer issued a permit for the removal of Mrs Curtis' Jacaranda due to damage it was causing and for public safety reasons. Ms Savva is scared the tree will collapse, or limbs will fall, and hit her grandchildren, who play in this area. Findings 1. Above ground, the Jacaranda appears to be structurally stable and does not pose a significant threat of damage or injury. Its branches extend up to two metres across the boundary, above Ms Savva's property, but are well away from her roof. Branches are unlikely to fall; the tree is unlikely to damage the boundary fence or Ms Savva's dwelling. It has not damaged the fence. 2. Debris falls onto the paved area outside Ms Savva's dwelling. While this might create a slippery surface if left, I would not make any orders on this basis. The maintenance required to prevent such build-up seems reasonable. The principle established at [20] in Barker v Kyriakides [2007] NSWLEC 292 applies equally here: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree." 1. Below ground, I accept that some roots of the Jacaranda are likely to grow within Ms Savva's raised garden bed. However, there is no evidence that its roots have damaged the wall. To the north, where the retaining wall is lower, the wall is perhaps two bricks thick, but that thicker section of the wall ends approximately five metres from the tree. Nearer the tree, where the wall supports a greater depth of soil, I dug down to a depth of 200 mm to find that the wall here consists of only a single layer of bricks. There are no engaged piers. The wall appears inadequate for its purpose of retaining this much soil. Regardless of the Jacaranda, this appears to be the weakest section of the wall, where it is most likely to fail. 2. The other tree that Ms Savva removed within her own garden bed was between the Jacaranda and the damaged part of the wall. It was therefore more likely to cause damage than the neighbouring tree. There is no evidence as to the species of tree that grew here. 3. Considering the site conditions described above, I find it most likely that Ms Savva's retaining wall is damaged as a result of its design and construction being inadequate for its purpose, possibly exacerbated by root growth, but those roots most likely belonged to Ms Savva's own tree. I cannot be satisfied that Mrs Curtis' Jacaranda has caused any damage, so according to s 10(2) of the Trees Act, I cannot make orders on this element of the application. Orders 1. As a result of the foregoing, the orders of the Court are: 1. The application is dismissed. ____________________________ 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: 19 November 2018