Kirby v Herbert [2020] NSWLEC 1691

Land and Environment Court New South Wales

Medium Neutral Citation: Kirby v Herbert [2020] NSWLEC 1691 Hearing dates: 18 September 2020 Date of orders: 18 September 2020 Decision date: 18 September 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. (2) The exhibits are returned, except for Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring trees – whether the damaged property (a retaining wall) is on the boundary – the trees have been removed – orders no longer sought for a retaining wall Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 Texts Cited: Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' (July 2020) Category: Principal judgment Parties: Ross Kirby (First Applicant) Sharyn Hill (Second Applicant) Christopher Herbert (First Respondent) Elizabeth Ann Crawford (Second Respondent) Representation: Counsel R Kirby (Litigant in Person) (First Applicant) S Hill (Litigant in Person) (Second Applicant) G Long (Solicitor) (Respondents)

Solicitors Long Legal Pty Ltd (Respondents) File Number(s): 2020/137701 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application 1. By way of background, this application concerns trees and a retaining wall on adjoining properties in Coal Point. There is obviously some extensive history between Mr Kirby and Ms Hill ('the applicants') and Ms Crawford and Mr Herbert ('the respondents') concerning the retaining wall and other issues. 2. When the applicants constructed a dwelling on their property, they proposed replacing an existing retaining wall on or near the common boundary with a new retaining wall, and a 'deed of agreement' was struck up between the parties. In that agreement, the applicants would bear the cost of replacing the retaining wall. Afterwards, upon being informed that a joint development application would be required, the applicants withdrew their intention to replace the retaining wall and have left it as it was. 3. After the applicants saw the retaining wall's condition deteriorating, they applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for nine palms on the respondents' land ('the trees') to be removed and for the retaining wall to be replaced, and an order for costs. Regarding costs, Commissioners of the Court do not have the power to award costs, but we have at least discussed that issue at today's hearing and hopefully the parties are fully informed on the process should they wish to pursue costs. 4. The trees have been removed since the application was filed. The applicants now seek to amend their application, and I have granted them leave to do so, so that they no longer seek orders for the retaining wall to be replaced. There is still some disagreement over whose retaining wall it is.