O’Neill v Brookes [2023] NSWLEC 1285

Land and Environment Court New South Wales

Medium Neutral Citation: O'Neill v Brookes [2023] NSWLEC 1285 Hearing dates: 20 March 2023 Date of orders: 08 June 2023 Decision date: 08 June 2023 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [32] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to boundary retaining wall – whether the tree must be removed – who should pay for the works – orders for tree removal and wall repairs Legislation Cited: Dividing Fences Act 1991, s 3 Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 10, 12 Cases Cited: Liu v Jiang [2021] NSWLEC 1571 Texts Cited: Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work' Tree Management Permit Council Policy (adopted by Wollongong City Council 26 August 2013) Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Luke O'Neill (First Applicant) Robyn O'Neill (Second Applicant) Clive Brookes (First Respondent) Dianne Brookes (Second Respondent) Representation: L O'Neill (Self-represented) (First Applicant) R O'Neill (Self-represented) (Second Applicant) C Brookes (Self-represented) (First Respondent) D Brookes (Self-represented) (Second Respondent) File Number(s): 2023/12830 Publication restriction: No

Judgment 1. COMMISSIONER: Robyn and Luke O'Neill (the applicants) live at their Stanwell Park property, alongside their neighbours, Dianne and Clive Brookes (the respondents). A mature Turpentine tree (Syncarpia glomulifera) (the tree) stands on the respondents' property adjacent to the common boundary. Their land is upslope from the applicants' land. A block retaining wall along the boundary supports their higher land. At the base of the tree, the retaining wall is absent for a length of 2 metres, having collapsed some time ago. 2. The parties see the need to replace this section of the retaining wall. They have negotiated over the best outcome for several years. In December 2021 they attended mediation, the outcome of which included the general terms of an agreement to replace this section of the retaining wall without removing the tree. However, the applicants then determined that this solution was unfavourable when they realised the extent to which the retaining wall would encroach onto their land. Unable to reach any further agreement with the respondents, the applicants applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking the following orders (summarised here): * Removal of the tree at the respondents' expense. * Repair of damage to the applicants' dwelling and paving at the respondents' expense. * Repair of the damaged section of the retaining wall at the respondents' expense. 1. The respondents propose that their tree is retained, that the damaged section of the boundary retaining wall is rebuilt on the applicants' land rather than on the boundary, and that the costs of this are shared equally by the parties. They propose that the applicants are responsible for any other repairs to their own property.