Golden v French [2022] NSWLEC 1642

Land and Environment Court New South Wales

Medium Neutral Citation: Golden v French [2022] NSWLEC 1642 Hearing dates: 14 September 2022 Date of orders: 18 November 2022 Decision date: 18 November 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to retaining wall and risk of injury claimed, reasonable wear and tear, no consequential damage or genuine risk found Legislation Cited: State Environmental Planning Policy (Vegetation in non-rural areas) 2017 Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Golden v Li [2021] NSWLEC 1751 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Wisdom v Payn [2011] NSWLEC 1012 Texts Cited: Australia Standards - AS4373:2007 Pruning of amenity trees (2007) Ku-ring-gai Development Control Plan 2021 Category: Principal judgment Parties: Patrick Golden (Applicant) Michael French (Respondent) Representation: P Golden (Self-represented) (Applicant) M French (Self-represented) (Respondent) File Number(s): 2022/198365 Publication restriction: No

Judgment 1. COMMISSIONER: Patrick Golden, the applicant, shares a boundary at his Turramurra property with the respondent, Michael French. The applicant's property is a deep rectangular block with the long boundaries running from the south-east at the street frontage to north-west at the rear. 2. The rear of the respondent's land meets the applicant's north-eastern side boundary towards the back of the applicant's land, as do the rear boundaries of both of the respondent's side neighbours. The respondent's side boundaries run from north-east at the front to south-west at the rear. 3. Mr Golden has a stabilised loam tennis court at the back of his rear yard which extends to both side boundaries, and is more than 50 years old. His land slopes down appreciably towards the west, such that extensive excavation, particularly around the east-side corner, was undertaken to create the court's level surface. 4. A slightly backward leaning tall masonry retaining wall was built just inside and parallel to the boundary on the court's north-eastern side. The wall's quality and structural integrity is unknown, and concealed by cement render, but it has been fit for purpose for over 50 years. The respondent's back yard is at the level of the top of this retaining wall. 5. To retain the south-eastern side of the excavated eastern corner, a banked retaining wall was created with an angle of about 40 degrees from vertical. This banked wall was stabilised with bush rock of various sizes, mortared together. 6. A Jacaranda mimosifolia (Jacaranda) (the tree) is growing in the southern corner of the respondent's back yard close to the top of the walls. It is long established and mature, but is relatively small for its age and displays signs of stress. The tree's location near the retaining walls may be subject to sharp drainage and thus low moisture availability, and/ or the tree may have been subject to past root damage. 7. Mr Golden claimed that the tree has caused damage to his bushrock retaining wall and he seeks compensation of $437.80 for rectification. Though the tennis court is covered in moss and apparently has not been used or maintained for many years, Mr Golden also sought to gain maximum light onto the court, and thus wanted the tree pruned to allow increased light to the tennis court, or removed. 8. Mr French rejected Mr Golden's claim for compensation for repairs to the retaining wall or for tree pruning or removal. He submitted that he had monitored the roots over time and detected no damage or change, and that any deterioration of condition should be considered as 'normal wear and tear'. He said that the tree had been pruned, under pressure from the applicant, and he did not want it pruned more. 9. 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 the following orders: