Golden v Li (No.2) [2022] NSWLEC 1450

Land and Environment Court New South Wales

Medium Neutral Citation: Golden v Li (No.2) [2022] NSWLEC 1450 Hearing dates: 26 May 2022 Date of orders: 14 December 2023 Decision date: 26 August 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [54]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall and tennis court fence – reasonable wear and tear – apportionment of cost Legislation Cited: Land and Environment Court Act 1979, ss 18, 22, 23, 30 Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12 Cases Cited: Bentley v Hinchen [2008] NSWLEC 1348 Golden v Li [2021] NSWLEC 1751 Hinde v Anderson [2009] NSWLEC 1148 McCallum v Riordan [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Patrick Golden (Applicant) Bin Li (First Respondent) Jing Zhang (Second Respondent) Representation: Counsel: P Golden, Self-represented (Applicant) B Li, Self-represented (Respondents) File Number(s): 2022/69264 Publication restriction: Nil

JUDGMENT 1. COMMISSIONER: Patrick Golden, the applicant, shares a side boundary at his Turramurra property with the respondents, Bin Li and Jing Zhang. Mr Golden lives at his property, while the respondents lived at their residence from 2012 until May 2020, after which they leased their property to tenants. 2. Mr Golden has a stabilised loam tennis court in the rear of his backyard extending to the common property boundary, which runs from south-east at the street frontage to north-west at the rear. The court is about 50 years old. The parties' land slopes down towards the rear of their blocks, such that the retaining wall on which the applicant's tennis court is based increases in height, and may splay-out into the respondents' land towards the rear of the court. In this area the retaining wall foundation appears to be formed from roughly assembled rocks, which the applicant submitted may be supported on natural bed rock, but he provided no evidence to support this claim. 3. A Pittosporum undulatum (Sweet Pittosporum) (the tree) has grown amongst the loose retaining wall components near the rear of the court, most likely from a self-sown seed. This species of pioneer plant generally grows rapidly, especially when availed with fertile clay soils and plentiful rainfall characteristic of Sydney's upper north-shore. 4. Mr Golden claims that the tree has caused damage to the retaining wall and to his tennis court, and seeks compensation for required repairs. At Mr Golden's request, Mr Li organised and paid for the tree to be removed, but Mr Li rejected Mr Golden's claim for repairs to the retaining wall or tennis court, on the basis that evidence of such damage is negligible, and any deterioration of condition should be considered as 'normal wear and tear'. 5. As a consequence, Mr Golden submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking compensation for damage to his property as a result of the Pittosporum tree.