McMahon v Slack-Smith [2022] NSWLEC 1639

Land and Environment Court New South Wales

Medium Neutral Citation: McMahon v Slack-Smith [2022] NSWLEC 1639 Hearing dates: 18 August 2022 Date of orders: 17 November 2022 Decision date: 17 November 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders are: (1) The respondents, at their expense, shall carefully remove the two or three displaced retaining wall concrete blocks near T1, and cleanly sever and remove roots from T1 and from the adjacent Umbrella tree from the area now absent of concrete blocks, and in close proximity. (2) The respondents, at their expense, shall carefully reinstate the concrete blocks into the wall onto a concrete base, and tightly mortar them into position. (3) The respondents, at their expense, shall cleanly sever and remove roots from T2 and T3, where they contact and exert pressure on wall bricks. This shall be completed with a sharp hand saw, and a sharp chisel and mallet where appropriate. A gap between roots and bricks of at least one centimetre shall be provided to allow for root growth between inspections. (4) The respondents, at their expense, shall inspect the retaining wall twice each year, and prune roots that may be near the retaining wall according to the procedures of Order 3. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to retaining wall - high hedges – views and privacy Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12. Pt 2A s14 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Standards Australia AS4373:2007 Pruning of amenity trees (2007) Tweed Shire Council Development Control Plan 2008 Category: Principal judgment Parties: John McMahon (Applicant) Christopher Slack-Smith (First Respondent) Fiona Slack-Smith (Second Respondent) Representation: J McMahon, (Self-represented) (Applicant) C Slack-Smith (Self-represented) (First Respondent) F Slack-Smith (Self-represented) (Second Respondent) File Number(s): 2022/161137 Publication restriction: No