Land and Environment Court New South Wales Medium Neutral Citation: Shevchenko v Kobayashi [2020] NSWLEC 1064 Hearing dates: 12 December 2019 Date of orders: 18 February 2020 Decision date: 18 February 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) Within 6 months from the date of these orders, the Melaleuca tree shall be removed to near the ground level of the respondent's property, and the stump poisoned, at the respondent's expense. (2) After removal of the Melaleuca, the 550mm tall concrete block retaining wall shall be rebuilt by a licenced builder, bricklayer, or landscaper, with all appropriate insurances, applying current construction standards appropriate for a wall approximately 550mm tall. Each party may get up to two quotes for this work from contractors who meet the aforementioned requirements, specified on a 'like for like' basis. Should the parties not agree on a choice of contractor, the cheapest quote shall be chosen. Upon completion of the retaining wall, the applicants shall provide the respondent with a copy of the paid invoice, and the respondent shall reimburse the applicants 50% of the total of this paid invoice within 60 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the applicants proceed with a contractor who has not provided the cheapest quote, the respondent shall be required to reimburse the applicants for 50% of the cheapest quote. Should the applicants not complete these works, and provide a copy of the paid invoice to the respondent within 6 months of the removal of the Melaleuca, any financial liability on the respondent for this work shall lapse. (3) The boundary fence between the properties, located above the retaining wall, shall be rebuilt after, or in conjunction with the retaining wall reconstruction. Each party may get up to two quotes for this work, specified on a 'like for like' basis (for a wire mesh fence equal in height to the current fence) from a licenced builder, fencer, or landscaper, with all appropriate insurances. Should the parties not agree on a choice of contractor, the cheapest quote shall be chosen. The applicants shall provide the respondent with a copy of the paid invoice upon completion of the fence, and the respondent shall reimburse the applicants 50% of the total of this paid invoice within 60 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the applicants proceed with a contractor who has not provided the cheapest quote for a 'like for like' fence, or, if the applicants install a taller fence and or a fence comprised of different material, such as timber palings, the respondent shall be required to reimburse the applicants only for 50% of the cheapest quote for a 'like for like' wire mesh fence. Should the applicants not complete these fence works and provide a copy of the paid invoice to the respondent within 6 months of the removal of the Melaleuca, any financial liability on the respondent for this work shall lapse. (4) Should the two Cocos palms be removed to benefit the applicants, these works shall be undertaken at the applicants' expense. (5) All tree work is to be completed by qualified arborists (minimum AQF level 3) with appropriate insurances, and is to comply with AS4373: 2007 (Pruning of amenity trees). (6) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (7) Both parties shall provide access to their properties, should it be required, for contractors to undertake these works, upon receipt of at least 48 hours written notice to the party in whose property the works are to be undertaken, of the date and approximate time works are to commence. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall, fence and path – apprehension of injury Legislation Cited: Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4373:2007 (Pruning of amenity trees) Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Category: Principal judgment Parties: Sergei Shevchenko (First Applicant) Oxana Shevchenko (Second Applicant) Tamiko Kobayashi (Respondent) Representation: S Shevchenko (Litigant in person) (First Applicant) O Shevchenko (Litigant in person) (Second Applicant) T Kobayashi (Litigant in person) (Respondent) File Number(s): 2019/289024 Publication restriction: No Judgment 1. COMMISSIONER: Mr and Mrs Shevchenko of Killarney Heights submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the removal of a Melaleuca quinquenervia (Broad leafed Paperbark) and two Syagrus romanzoffiana (Cocos Palms) from the rear yard of the adjacent neighbouring property. They are located near the shared boundary, which runs from north-west to south-east. 2. The applicants contend that the trees have caused, and are causing, damage to their retaining wall, which defines part of their side boundary, and the respondent's rear boundary. They also claim that the Melaleuca's trunk, and overhanging branches, pose a serious risk of injury, and that the leaning trunk is bending their wire mesh boundary fence (the fence). Applicant's proposed orders 1. To remove the Melaleuca (Paperbark) tree (T1). 2. To remove the two palm trees (T2 and T3). 3. To rebuild retaining wall – to demolish and remove old damaged retaining wall, sever tree roots along the boundary and remove any vegetation in line of new wall, excavate area for footing trench, install new footing and retaining wall to support new fence. 4. To install new timber fence above retaining wall (under s 13A of the Dividing Fences Act 1991, and 2008 amendment). 5. To remove/replace the damaged footpaths. 6. To regularly maintain vegetation from the recipient's side to prevent damage to the newly installed retaining wall and fence. Respondent's proposed Orders 1. Ms Kobayashi seeks a fair solution which results in both parties feeling safe and satisfied with the outcome, and avoids ongoing issues in the future. 2. Should orders be made for the removal of the Melaleuca, Ms Kobayashi seeks that the applicants pay half the cost. She consents to Mr and Mrs Shevchenko's request for removal of the palms, "at their own cost and per their own quote". 3. Ms Kobayashi rejects the order to rebuild the retaining wall, on the basis that the applicants did not mitigate the damage, nor alert her about the wall's poor condition before the damage had reached its currently significantly damaged state. She notes that "if the retaining wall was damaged pre-acquisition, I am not responsible for its condition". 4. The respondent rejects the fencing order – to demolish and remove old damaged retaining wall, sever tree roots along the boundary and remove any vegetation in line of new wall, excavate area for footing trench, install new footing and retaining wall to support new fence (under 2008 amendment to the Dividing Fences Act 1991), and install a new timber fence. 5. Alternatively, Ms Kobayashi seeks the installation of a new wire fence or a Colourbond fence, which she contends will require less ongoing maintenance, and thus be less likely to contribute to future complaints and conflict between the parties. 6. Ms Kobayashi also rejects the order to remove/replace the applicants' footpath, as the applicants did not mitigate the damage to the footpath, nor notify her of the damage when they first noticed it. She contends that it is highly likely that the footpath was already damaged when the applicants purchased their property. 7. Ms Kobayashi gives consent to the applicants to prune any vegetation overhanging their property, and to access her property to do so, provided they give her reasonable notice. 8. Additionally, Ms Kobayashi orders the applicants to provide evidence and continue to provide evidence of six native trees planted on their property, which grow to six metres tall in six years, as required by Northern Beaches Council (Council) as a condition of approval of their previous Development Applications for removal of three Eucalyptus trees. The on-site hearing 1. This dispute has been protracted and complex and, along with the parties, has impacted members of the local community. Based on the background provided in the case file, it was unsurprising that about six neighbours were assembled for the hearing. 2. Though these neighbours do not have standing to make submissions at the hearing, written statements from two of them were included with the respondent's documentation, and have been considered in my deliberations. 3. The hearing commenced with both parties in the respondent's rear yard for an inspection of the trees. The neighbours were welcomed here as observers, but the applicants requested that they did not enter their property, when the Court subsequently inspected the situation from there. Ms Kobayashi's daughter accompanied Ms Kobayashi, for assistance with translation, and support. 4. The Melaleuca is mature and about 12 metres tall with a typically ascending branch structure. The trunk is at least 600mm diameter at ground level, and is positioned close to the boundary. It appears to be structurally stable, and its roots have likely gained purchase in amongst, and under the adjacent rock shelf. The two palms are about 9 metres tall. 5. Viewed from the applicants' property, the concrete block retaining wall is bowed and cracked in various places, with broken blocks dislodged. The difference in level between the two properties is about 550 mm. The Melaleuca's upper canopy is overhanging the boundary by about three metres. Jurisdictional requirements 1. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 2. The Court is obliged to consider a number of matters pursuant to s 10 of the Act. 3. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. Mr and Mrs Shevchenko's application included reference to extensive correspondence, liaison with Community Justice Centre with respect to mediation, and financial offers to Ms Kobayashi's relating to the tree removal proposal. 4. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned 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. 5. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. Retaining wall damage 1. The retaining wall is approximately 50 years old. It was reportedly constructed by the then house owner. There are no footings as such, nor any supporting pillars. It is based on a concrete strip only about 60mm thick, and in some areas is mortared onto existing sandstone rock shelfs. There is no sign of steel or concrete reinforcement within the blocks to strengthen and stabilise the wall. 2. The Melaleuca has been growing in close proximity to the wall for about 40 years. Roots are present close to the wall, and, based on their distinctive bark, I am satisfied that they are from this tree, and are a cause of the wall damage. Therefore, the jurisdiction of the Act is engaged. 3. Though the retaining wall does not meet current construction standards, it is reasonable to suggest that it would have remained intact and functional in the absence of pressure from tree roots. The damage is sufficiently severe along its length that 'like for like' replacement is appropriate, rather than repair. As is normal with boundary wall and fence replacement, this cost shall be shared between the parties. 4. Excavation for footings, which is probably required to meet current construction standards, will likely result in extensive damage to roots of the Melaleuca, and this would reduce the structural stability of the tree. Therefore, removal of the Melaleuca is required prior to reconstruction of the wall. 5. The Melaleuca is mature but it is nonetheless still growing, with trunk, branches and roots continuing to increase in girth. It is also a species often associated with damage to proximal structures. If the wall was reconstructed while retaining the Melaleuca, the tree is sufficiently close to the boundary that residual roots or root regrowth may also damage the replacement wall. Further, while I am satisfied that the tree currently presents a low risk of injury to the applicants and their family, or of damage to their house, one cannot have the same confidence if the tree's roots are damaged, and structurally compromised. Fence replacement 1. In conjunction with the retaining wall, the boundary fence will also require replacement. The existing wire mesh fence has been functional for many years, and in the main, remains functional. Based on a 'like for like' replacement, this existing fence form and height provides a baseline for equal apportionment of cost to the parties. The applicants seek to install a fence which is taller and of a different material to the current situation, which is likely to be more expensive. Any fencing costs that exceed the cost of 'like for like' replacement shall thus be borne by the applicants. Debris dropping from palms 1. The two Cocos Palms, T2 and T3, are sufficiently distant from the wall, that I am not satisfied that they have contributed to retaining wall damage, notwithstanding that one root is evident in a mortar gap in the face of the wall. 2. To support their claim for removal of the palms, Mr and Mrs Shevchenko's pressed the issue of ongoing maintenance required to clean up seeds and other refuse dropping onto their path and lawn below the tree, along with the trip hazard such refuse represents. 3. In Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 at [171], with respect to "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", Preston CJ states that this is not "damage to property on the land" within s 7 of the Act, and that "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7." 1. The issue of the maintenance impost from falling sticks and leaves is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle: "…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 will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree." 1. Therefore, there is no jurisdiction under the Act with respect to these palms, and no obvious benefit to the respondent from their removal. As such, should these palms be removed to benefit Mr and Mrs Shevchenko, it is reasonable that this should be at their expense. Path damage 1. Mr and Mrs Shevchenko's noted uplift of about 9cm to a concrete footpath allegedly as a result of Melaleuca roots, and claim this has occurred since they occupied their property in 2014. The footpath is old and does not appear to perform a role as part of a viable path – it does not lead anywhere. While a photograph provided by the applicants displays a Melaleuca root near the path edge, it appears to be too small to have caused this degree of uplift, and, onsite, I was unable to establish a causal link between Melaleuca roots and this damage. Further, two photographs of the damage, taken more than a year apart in 2018 and 2019, appears to display no obvious change in the extent of uplift. In the case of a footpath, where there is normally little structural resistance to heaving, one can expect the rate of increase in uplift to be fairly steady. 2. Therefore, I am not satisfied that the nexus between the Melaleuca and this path uplift has been established, and conclude that the origin of this damage is likely to have preceded Mr and Mrs Shevchenko's occupation of the property. This issue is set aside and dismissed. Risk of Injury 1. There are no obvious characteristics of the Melaleuca that currently cause concern with respect to risk of Injury, but this issue is no longer relevant, so it is also set aside. Discretionary matters – s 12 1. In making an order, the Court considers relevant matters in s 12 of the Act. 1. The base of the tree is located in the respondent's property but a small part of a trunk may be growing across the boundary (s 12(a)); 2. Pruning or removal of the tree requires consent from Council under the Environmental Planning and Assessment Act 1979 (s 12(b)), and Council have granted permission for the removal of the Melaleuca. 3. The trees contribute to protection from the sun, and from wind, to landscaping, to the amenity of the respondent's property, and to the immediate locality. The trees are visible from neighbouring houses and thus have intrinsic value to public amenity. Ms Kobayashi noted in her submissions that three large trees had been removed from the rear yard of the applicants' property since their initial occupation in 2014, and this has increased the amenity value of the Melaleuca to the local community (s 12(b3)(e)(f)). 4. Being a species indigenous to the east coast of NSW, the Melaleuca's flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna and thus would contribute to local biodiversity (s 12(d)). 5. Given the slope of the land of both properties, and the different levels on which their houses and yards are located, the tree is likely to be providing benefit to soil stability, and, particularly, to absorbing water and reducing run off (s 12(g)). 6. With respect to anything, other than the tree, that has contributed, or is contributing, to any such damage, or likelihood of damage, including any act or omission by the applicant (s 12(i)), Ms Kobayashi alleged that because the tree was already mature, it was unlikely to have grown or changed much since the applicants first occupied the property in 2014. She contends that the wall damage therefore would already have been apparent, and that Mr and Mrs Shevchenko failed to advise her when the damage was first noticed. 1. While this may be so, it is not necessarily the case. The applicants contend that the wall was "functioning correctly" when they purchased the property, and thus did not command their attention until damage occurred and increased some years later. The Shevchenko's also note that the causal link between the wall damage and the Melaleuca was highlighted by the arborist who undertook the removal of one of their trees in 2018, prompting their alert to the respondent about the damage. 2. Exposure of evidence of damage of this type is also not necessarily linear. Pressure may build as roots progressively grow and thicken, but this may not display as cracking, heaving or displacement of a wall until this pressure is sufficient to exceed the strength of wall components. Thus an increase in damage can happen quite suddenly, rather than incrementally. 3. Ms Kobayashi rejected the Shevchenko's submission that she failed to take appropriate steps to prevent or rectify damage caused by the Melaleuca (s 12(i)). She made three site visits to the applicants' property to inspect and discuss the wall damage, applied for and gained approval from Council for tree removal, arranged and received three quotes for said works, and approached a Community Justice Centre to organise mediation. 4. Mr and Mrs Shevchenko were well aware that Ms Kobayashi needed to regularly travel to Japan to care for her gravely ill parents, and it is reasonable that any timetable for addressing the wall and tree issues should be determined in this context. This was accepted by both parties at the hearing, and will be a consideration in any Court Orders. 1. A Jacaranda tree is not subject to assessment in this case, but it is also growing close to the wall. It is important that root damage to this Jacaranda is minimised in the wall reconstruction, as the maintenance of both tree health and stability is fundamentally dependent on the structure and function of the root system. Given that the Melaleuca roots are relatively easy to identify by their bark, the Jacaranda roots should also be relatively obvious by default, as it is the only other tree with woody roots in the area (s 12(j)). Conclusion 1. Based on the evidence adduced, I have reached the following conclusions: 1. The Melaleuca tree is a cause of the damage which has occurred and is currently impacting the retaining wall, and the jurisdiction of the Act is thus engaged. 2. The damage to the boundary retaining wall, required to support the respondent's rear yard which terminates about 550mm higher than applicants' rear yard, is sufficiently extensive to require replacement, rather than repair, and this will be ordered on a 'like for like' basis, as will the boundary fence, which the retaining wall supports. 3. The removal of the Melaleuca will be ordered, due to the high probability that its structural stability in the ground will be compromised during the process of rebuilding the retaining wall to current construction standards. 4. The issue of falling debris from the two palms on the applicants' rear yard, is addressed and resolved with the guidance of the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292. The canopies barely overhang the Shevchenko's property, and there is no legal requirement for Ms Kobayashi to remove them. 5. The impact of the removal of the Melaleuca for the local community is exacerbated by the removal of three large Eucalyptus trees from the Shevchenko's rear yard since 2014, and this has been a major concern for Ms Kobayashi. 6. I have no jurisdiction with respect to Council requirements for the planting, retention and maintenance of replacement trees related to the applicants' prior tree removals. While I have considered this context, and neighbour's submissions in my deliberations, I am limited by the Act with respect to issues which are not the subject of this application. Orders 1. The Court orders that: 1. Within 6 months from the date of these orders, the Melaleuca tree shall be removed to near the ground level of the respondent's property, and the stump poisoned, at the respondent's expense. 2. After removal of the Melaleuca, the 550mm tall concrete block retaining wall shall be rebuilt by a licenced builder, bricklayer, or landscaper, with all appropriate insurances, applying current construction standards appropriate for a wall approximately 550mm tall. Each party may get up to two quotes for this work from contractors who meet the aforementioned requirements, specified on a 'like for like' basis. Should the parties not agree on a choice of contractor, the cheapest quote shall be chosen. Upon completion of the retaining wall, the applicants shall provide the respondent with a copy of the paid invoice, and the respondent shall reimburse the applicants 50% of the total of this paid invoice within 60 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the applicants proceed with a contractor who has not provided the cheapest quote, the respondent shall be required to reimburse the applicants for 50% of the cheapest quote. Should the applicants not complete these works, and provide a copy of the paid invoice to the respondent within 6 months of the removal of the Melaleuca, any financial liability on the respondent for this work shall lapse. 3. The boundary fence between the properties, located above the retaining wall, shall be rebuilt after, or in conjunction with the retaining wall reconstruction. Each party may get up to two quotes for this work, specified on a 'like for like' basis (for a wire mesh fence equal in height to the current fence) from a licenced builder, fencer, or landscaper, with all appropriate insurances. Should the parties not agree on a choice of contractor, the cheapest quote shall be chosen. The applicants shall provide the respondent with a copy of the paid invoice upon completion of the fence, and the respondent shall reimburse the applicants 50% of the total of this paid invoice within 60 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the applicants proceed with a contractor who has not provided the cheapest quote for a 'like for like' fence, or, if the applicants install a taller fence and or a fence comprised of different material, such as timber palings, the respondent shall be required to reimburse the applicants only for 50% of the cheapest quote for a 'like for like' wire mesh fence. Should the applicants not complete these fence works and provide a copy of the paid invoice to the respondent within 6 months of the removal of the Melaleuca, any financial liability on the respondent for this work shall lapse. 4. Should the two Cocos palms be removed to benefit the applicants, these works shall be undertaken at the applicants' expense. 5. All tree work is to be completed by qualified arborists (minimum AQF level 3) with appropriate insurances, and is to comply with AS4373: 2007 (Pruning of amenity trees). 6. All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 7. Both parties shall provide access to their properties, should it be required, for contractors to undertake these works, upon receipt of at least 48 hours written notice to the party in whose property the works are to be undertaken, of the date and approximate time works are to commence. …………………………. J Douglas 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: 20 February 2020