Shagrin & Anor v O’Neil & Anor [2010] NSWLEC 1368

Land and Environment Court of New South Wales

CITATION : Shagrin & Anor v O'Neil & Anor [2010] NSWLEC 1368

APPLICANTS A & L Shagrin PARTIES : RESPONDENTS J & A O'Neil

FILE NUMBER(S) : 20624 of 2010

CORAM: Moore SC - Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; interruption to views

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakidis[2007] NSWLEC 292 Tenacity Consulting v Waringah [2004] NSWLEC 140

DATES OF HEARING: 8 December 2010

EX TEMPORE JUDGMENT DATE : 8 December 2010

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC FAKES C

8 December 2010

20624 of 2010 A & L Shagrin v J & A O'Neil

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: In these proceedings, Mr and Mrs Shagrin have made applications under both Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act. The applications between them relate to a number of Banksia trees planted on the side boundary and in the front setback of the property to the south owned by Mr and Mrs O'Neil. It is necessary for us to consider each of the applications under the two Parts of the Act separately as different jurisdictional tests apply with respect to them. 2 Before commencing that analysis, we also note that, during the course of the proceedings, Mr and Mrs Shagrin made an application for leave to amend their application under Part 2 of the Act to incorporate an application concerning a number of tree ferns located along the side boundary shared between the two properties. The basis of that application was s 10(2)(b) of the Act in that it was said that those trees were likely to cause injury to any person arising from the irritation that Mrs Shagrin says she suffers in her eyes from pollen or other material that is deposited by those tree ferns, and also pursuant to s 10(2)(a) concerning what they say is a risk of damage to their property. We declined leave to amend but make the specific observation that, because the tree ferns were not the subject of the original application, this ruling does not preclude some separate application being made with respect to those plants. We did observe during the course of rejecting the application, that we were satisfied that tree ferns under the circumstances satisfied the definition of a tree, being a plant resembling a tree in form and size, and were thus within the scope of the legislation. 3 We turn first to the question of the application under Part 2 of the Act. 4 The application under Part 2 relates to a number of matters. The first is the small retaining wall at the front of the two properties located on the southern side of the driveway leading to the Shagrins' garage which is located close to the front boundary of the property. We have in evidence a survey certificate that shows, in our understanding of it, clearly that that wall is located entirely on Mr and Mrs O'Neil's property and that, although damaged, it is not the applicant's property located on the applicant's property and therefore is not within the scope of the Act. 5 If the wall has moved as a consequence of its displacement as dealt with in a builder's report that is in evidence before us, so that part of the wall as a consequence of that displacement is now located above and intruding into Mr and Mrs Shagrin's property, it nonetheless remains in our view in Mr and Mrs O'Neil's ownership and is still not brought within the scope of the Act. Therefore, to the extent that that retaining wall is part of the application, we are satisfied that we do not have jurisdiction to deal with it. We note that Mr and Mrs O'Neil have indicated that they propose to reinstate the wall. It is not a matter for this Court to make any orders about or to seek any undertakings concerning this wall. 6 The second aspect of damage that is raised with respect to s 10(2)(a) of the Act is the intrusion of water into Mr and Mrs Shagrin's garage. It is said that that arises as a consequence of the pressure of the Banksia trees along the side boundary on a structural retaining wall recently constructed by Mr and Mrs O'Neil. That construction was in the recent past as part of the construction of their dwelling on the site. We are satisfied on the basis of the engineering evidence that is before us that that wall is properly and adequately constructed. Mr and Mrs Shagrin's garage roofing is attached (by grace and favour of the respondents) to that wall rather than being part of a free-standing garage structure entirely on their own property. We assume for the purposes of this discussion, taking Mr and Mrs Shagrin's case at its highest, that the intrusion of water into their garage in fact constitutes damage for the purposes of the legislation, although we saw nothing other than the mere penetration of water. There are other issues relating to cracking of the garage which we will discuss further shortly.