Land and Environment Court New South Wales Medium Neutral Citation: Bertalli v Hutton [2020] NSWLEC 1060 Hearing dates: 21 November 2019 Date of orders: 09 January 2020 Decision date: 09 January 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [38] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by tree – damage to retaining wall – replacement of dividing fence – other factors contributing to damage – actions taken by the tree owner – amenity and other benefits of the tree – whether the tree should be removed – whether the tree owner should contribute to the cost of repairing the applicant's retaining wall Legislation Cited: Dividing Fences Act 1991 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 St Clair v Kilham [2018] NSWLEC 1071 White v Blacket [2018] NSWLEC 1386 Category: Principal judgment Parties: Anna Louise Bertalli (Applicant) James John Hutton (First Respondent) Catherine Ruth Kelso (Second Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicant) J Hutton (Litigant in person) (Respondents) Solicitors: Planning Law Solutions (Applicant) File Number(s): 2019/222954 Publication restriction: No Judgment Background to the application 1. The inner Sydney suburb of Birchgrove owes its leafy nature to trees growing on both public and private land. The local landscape character is a result of the local council successfully planning for, and managing, street and park trees, and property owners respectfully maintaining and protecting suitable trees in the private realm. 2. A large and mature Jacaranda tree (Jacaranda mimosifolia) ('the tree') grows in the Birchgrove garden of James Hutton and Catherine Kelso ('the respondents'). During the time they have lived there they have protected the tree during works on their property and maintained it as needed. Ms Bertalli ('the applicant') owns the neighbouring property. During redevelopment of the applicant's property in 2008–2009, a retaining wall on the applicant's property, close to the common boundary and close to the Jacaranda, was left in place but renovated superficially. For its entire length, but most noticeably near the Jacaranda, that retaining wall is now leaning towards Ms Bertalli's dwelling. The adjacent dividing fence along the common boundary is also out of alignment. After the retaining wall's condition was brought to the respondents' attention, the parties virtually reached agreement on an outcome that would retain the Jacaranda while replacing the retaining wall, with the costs shared equally between the applicant and the respondents. The application 1. Despite the proposed agreement between the parties, Ms Bertalli then applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) ('the Trees Act'), for the following orders: 1. Removal of the Jacaranda tree; and 2. Demolition and re-construction of the retaining wall adjacent to the common boundary between lot 18 DP 112424 and lot 14 DP 1130714; and 3. The owner of the Jacaranda tree be ordered to: 1. erect a sufficient dividing fence on the common boundary between lot 18 DP 112424 and lot 14 DP 1130714 for the length of the retaining wall, after the new retaining wall is constructed; and 2. pay 100% of the cost of demolition and construction of the retaining wall, erection of a dividing fence and removal of the Jacaranda tree. The respondents' alternative orders 1. In their submissions, the respondents asked the Court to make the following orders: 1. Uphold the application in part; 2. Make orders for the removal the Jacaranda Tree; 3. Make orders for the demolition and rebuilding of the part of the retaining wall adjacent to the tree; and 4. Apportion the cost of 2 and 3 to the applicant. 1. The respondents expressed a willingness to pay 50% of the cost of a new paling fence required once the retaining wall is rebuilt. 2. During his submissions to the Court, Mr Hutton stressed that the respondents would prefer to retain the tree if that option was possible. The hearing 1. The onsite hearing took place on 21 November 2019. Ms Bertalli was represented by solicitor Mr Mantei, with oral evidence given by James McArdle, arborist, and Nikolai Koloff, engineer. Mr Hutton represented himself and Ms Kelso, with oral evidence from Alan Wright, engineer. Both engineers had earlier prepared reports, were provided useful information in making this decision. Framework for this decision 1. Before the Court can make any orders, I must be satisfied, at s 10(1)(a) of the Trees Act, that the applicant has made reasonable effort to reach agreement with the respondents. 2. Then I must be satisfied, at s 10(2) of the Trees Act, that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury to any person. If satisfied of this test, I must consider a range of relevant matters set out at s 12 before making appropriate orders to remedy, restrain or prevent the damage, or to prevent injury. The applicant has made reasonable effort to reach agreement 1. The parties have attempted to negotiate a suitable outcome for some time. Prior to the application, they had almost reached an agreement for replacing the wall and fence while retaining the tree. 2. Mr Mantei submitted that Ms Bertalli made a concerted effort to reach agreement, but the respondents were reluctant to agree to tree removal without further details. This request for further details and certainty from the respondents is the reason no agreement was reached, forcing Ms Bertalli to make this application. 3. Regardless of the applicant's reasons for retreating from this agreement, I am satisfied that she has made reasonable effort. The tree 1. This large mature Jacaranda is in good health, with no major structural defects. It could be expected to thrive here for many more years. The tree has damaged the applicant's property 1. The parties agree that the tree has contributed to the wall's condition. Evidence from Mr McArdle, Mr Koloff and Mr Wright affirms this. There may be other contributing factors, which I will come to, but the Trees Act only requires that the tree is a cause of damage, and thus its jurisdiction is enlivened and orders may be made to remedy, restrain or prevent the damage. A section of the timber boundary fence, above the retaining wall, has been affected by the wall's movement. Therefore, according to the Dividing Fences Act 1991 (NSW) orders may be made not just for that section of the fence, but for all of the boundary fence. The parties agree that the entire length of fence along their common boundary should be replaced. 2. As I am satisfied that the tree has damaged the applicant's property, I can make orders to remedy the damage and to prevent further damage. I must determine what works are appropriate regarding the tree and the damaged property, who will carry out any works and who will pay for the works, or how costs might be apportioned. To do this, I must consider the matters listed at s 12 of the Trees Act. Relevant factors to consider before determining orders Location of the tree 1. The tree is close to the common boundary, and therefore close to the retaining wall. As a result, it may impact either property, but also benefits both. Council consent would be required for tree removal 1. The tree's owners would ordinarily require a permit from Inner West Council for its removal. During earlier negotiations regarding the damaged retaining wall, the parties had discussed options for retaining the tree. According to Mr Hutton, after the applicant subsequently determined that the tree should be removed, she suggested to the respondents that making an application to the Court would circumvent the need to obtain Council permission to remove the tree. The purpose of the Trees Act is to resolve disputes between neighbours, not to circumvent council permit requirements. Once the Court makes orders, council consent is not required for any works that are ordered (s 6(3) of the Trees Act), but the effects of the Environmental Planning and Assessment Act 1979 (NSW), and in particular any controls on tree removal and pruning works, must be considered when making those orders. Pruning is not proposed 1. Pruning the tree's crown would not remedy or prevent damage to the retaining wall. The wall is close to the tree, so any roots in the vicinity of the wall are likely to include structural roots, which cannot be cut without affecting the tree's stability. If the tree is retained, works to replace the retaining wall must avoid the requirement to prune or damage the tree's roots. The tree makes a positive contribution to private and public amenity 1. This large Jacaranda grows in the respondents' private rear garden near the common boundary shared with the applicant and with their boundary at the street alongside their dwelling (they are on a corner property). The tree's crown features in the outlook from rooms at the rear of the respondents' dwelling, especially from their children's room on the first floor, from where the leaves and flowers, in full bloom at the time of the hearing, fill the vista. Without the tree, the applicant's dwelling, including the lower storey and services, would be looked upon instead. The tree therefore provides important visual screening between the two properties. 2. The Jacaranda's contribution to the landscape value of the respondents' garden is significant. It rises above their rear garden, softening the outlook and providing shade. Being to the northwest of their dwelling, the tree would reduce the respondents' cooling costs in summer. Fitting as it does in the local landscape that includes many other Jacarandas, the property's context within the landscape is assisted by the tree. 3. The Jacaranda can be seen from the street and is one of many trees that give this landscape its leafy and shaded character. Its contribution to public amenity is significant. 4. In his oral evidence, Mr McArdle stated that the Jacaranda was worth retaining, and any options that might allow its retention should be explored. Other factors have contributed to the damage 1. Both engineers, Mr Koloff and Mr Wright, gave evidence that the retaining wall was not designed or constructed to withstand the conditions or to retain the depth of soil it supports. Its condition is partly due to its inadequate construction and its age, or at least its inability to perform its role during its lifetime. Further along the common boundary, away from the Jacaranda, the retaining wall leans into Ms Bertalli's property, albeit at a less significant angle than within the tree's field of influence. Mr McArdle noted that the Jacaranda's roots had only contributed to damage within a few metres of the tree, and damage further along the wall must be due to other factors. 2. Mr Koloff gave evidence that there was no sign of drainage behind the retaining wall. He guessed that the wall was built during the 1950s, at which time there was no relevant construction standard for retaining walls. Mr Wright stated that a code of practice existed in the 1950s, and Mr Koloff had not formed an opinion as to whether the wall's construction met that code. The engineers agreed that the wall would not meet the 2002 construction standard for retaining walls, which was the relevant standard at the time of redevelopment of the applicant's property in 2008. 3. Regardless of whether the retaining wall met standards at the time it was constructed, it seems likely that the Jacaranda was already present when the wall was built. Mr McArdle thought the tree was approximately 50 years old. Despite Mr Koloff's opinion of the wall's age, Mr Mantei said the wall was at least 26 years old, but may be older. If the wall's construction was inadequate for retaining soil, it could never be relied upon to withstand the growth and action of tree roots. 4. The parties disagreed as to whether or not the 2008 Development Consent for works on the applicant's property included a requirement to upgrade the retaining wall. The consent included a condition that retaining walls be designed or maintained to withstand site conditions, including existing trees. Mr Mantei argued that this only applied to any new walls being constructed on the applicant's property, while Mr Hutton argued that the condition did not differentiate between new and existing walls and must apply to the retaining wall that existed then and is now the subject of damage. The consent's use of "all retaining walls" and "any retaining walls" (my emphasis) suggests Mr Hutton's interpretation might be closer to the determining authority's intent. 5. At the time of the 2008 redevelopment of the applicant's property, a clean slate allowed the opportunity for all existing site conditions to be addressed. The inadequate design and construction of this existing retaining wall must have been assessable then, as it is now. According to the applicant, the only works done to the wall were superficial, so that its face matches the surfaces of other nearby structures. That no effort was made to strengthen or replace this retaining wall was, in my mind, an omission. 6. Damage to the retaining wall is relatively recent, perhaps most of it occurring within the last decade. In 2016, water issues on the applicant's property led her to seek advice. A report in 2017 noted that the wall had already shifted significantly, but the applicant submitted that it has moved more since then. 7. The applicant first raised the issue of damage and tree roots with the respondents in 2016 or 2017. The respondents were then, and appear to have remained, cooperative, concerned and willing to take appropriate action. They explored options to remedy the damage and came to an agreement with the applicant. They sought advice as to engineering solutions. When the applicant's quotes for replacing the wall seemed expensive, they obtained other quotes. In short, there seems little more that the respondents could have done to prevent further damage once they became aware of it. The application to remove the tree is refused 1. Consideration of the matters at s 12 highlights the tree's value to the respondents' property as well as to the broader landscape. Its removal would result in significant loss to the respondents, to the landscape and to the local community. The Trees Act's requirement that I consider these matters demonstrates their importance. This leads me to conclude that if the tree can be retained, with reasonable measures to repair existing damage and to prevent further damage, this should be preferred over ordering its removal. Replacement of the retaining wall 1. Mr Koloff provided the applicant with drawings and specifications for a replacement retaining wall that would meet current standards and be suitable for existing site conditions, including the presence of the Jacaranda. In his report of September 2019, Mr Wright concluded that Mr Koloff's proposed wall design required modification to be an acceptable solution. 2. The engineers agreed at the hearing that Mr Koloff's specifications for the wall, with agreed amendments, were a suitable solution that would allow retention of the Jacaranda. The amendments addressed the depth of the cores below the wall and the diameter of the core holes. 3. Drainage will be required behind the new wall. Replacing the wall in its existing location would therefore require removal of soil and likely disturbance of, and damage to, some of the Jacaranda's structural roots. Mr Koloff's drawing shows the replacement wall extending from the corner of the applicant's dwelling out to both the common boundary and the boundary with the street, adding an additional area of retained soil within the applicant's property. Mr Mantei submitted that Ms Bertalli did not wish to have access to the side of her dwelling restricted in this way. Using Mr Koloff's specifications, the new wall could be constructed at a setback from the common boundary that is greater than the existing wall but less than shown on Mr Koloff's drawing. Who should pay for the works? 1. The wall is on Ms Bertalli's property. As I found in St Clair v Kilham [2018] NSWLEC 1071, it is reasonable to consider the wall's age, design and construction when considering apportionment. In White v Blacket [2018] NSWLEC 1386, at [26]–[32], the inadequate design and construction of the applicant's retaining wall, along with the prompt action taken by the respondents, led to the applicants bearing the cost of replacing the wall. 2. The principle at [15] in Black v Johnson (No 2) [2007] NSWLEC 513 is relevant to this case. Although I cannot be sure that the Jacaranda predates the original construction of the wall, that seems likely. Importantly, however, the Jacaranda was present during redevelopment of the applicant's property, when the opportunity arose to upgrade the wall, and this may have even been a condition of consent. 3. Although the Jacaranda's growth has contributed to the wall's condition, this was enabled by the wall's inadequate design and construction. An opportunity to remedy this arose during earlier works on the applicant's property, but was not taken. The respondents acted promptly to avoid further damage by coming to an agreement with the applicant, although that agreement did not materialise. As a result, the respondents will not be ordered to contribute to the cost of the wall's replacement. The boundary fence is to be replaced 1. The fence requires replacement, which should be done after the wall is replaced. Its condition is principally due to its age, rather than any specific cause of damage. As is usual in dividing fence matters, the cost of its replacement should be shared by the parties. Orders 1. As a result of the foregoing, the Court orders: 1. The application is granted in part. 2. The application to remove the Jacaranda tree is refused. 3. By 31 May 2020, the applicant is engage and pay for a suitably experienced contractor, with all appropriate licences and insurances, to: 1. demolish the existing retaining wall adjacent to the common boundary shared with the respondents, for at least the damaged section adjacent to the Jacaranda tree but for its entire length should they wish; 2. construct a new retaining wall according to the specifications originally provided by Mr Koloff (dated 8/05/2018) and amended by Mr Koloff and Mr Wright at the onsite hearing, with any further amendments required to meet current relevant standards. The section of the wall near the Jacaranda is to be set back from the boundary a further 200 mm to allow drainage to be installed without damaging roots. 1. Within 30 days of the completion of the works in (3), the applicant and respondents are to jointly engage a fencing contractor to demolish the fence along their common boundary and to replace it with a fence of a similar nature or as otherwise agreed. The applicant is to pay 50% of the cost of these works and the respondents are to pay 50%. 2. The applicant and the respondents are to allow any access required to complete the works ordered above during reasonable hours of the day. ………………………………. 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: 12 February 2020