Land and Environment Court of New South Wales CITATION : Donaldson v Wong [2007] NSWLEC 321 APPLICANTS Ian & Gail Donaldson PARTIES : RESPONDENT Helen Wong FILE NUMBER(S) : 20262 of 2007 CORAM: Moore C - Brown C - Thyer AC Trees (Neighbours) - Neighbour Application :- KEY ISSUES: Consent orders Rectification of damage LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 17 May 2007 EX TEMPORE JUDGMENT DATE : 17 May 2007 APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT Mr A S Brown, solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C Brown C Thyer AC 17 May 2007 20262 of 2007 Ian Donaldson v Helen Wong This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a Red Ironbark (Eucalyptus sideroxylon) (the tree) located on 34 Phillip Street, Balmain. The application is made by Mr and Ms Donaldson who are the residents of 36 Phillip Street, Balmain. 2 We are satisfied from photographs that have been informally provided to the Court by the applicants, the respondent Ms Wong (who should correctly be described as the owner of the property) and from Leichhardt Council that the wall is damaged and that that damage has been occasioned by the action of the roots of the tree. 3 As a consequence of that, we are satisfied that, pursuant to s 10(2)(a) of the Act, there has been damage caused by a tree on adjoining land which enlivens the jurisdiction of the Court. 4 The parties have had discussions and have agreed to resolve the matter on the basis that the rubbish and rubble and other material on the site of the existing wall will be removed by the applicants, at their cost, and that, within 30 days of such removal being completed, the respondent will arrange to reconstruct the dividing wall on the same structural construction basis as is presently the case. That reconstruction will be at the cost to the respondent. 5 The parties have further agreed that the structural soundness of the resulting structure should be certified by a structural engineer and that the cost of such certification should be shared equally between them. 6 We have been provided with a letter by Leichhardt Council which indicates inter alia: "In regard to any replacement of the existing wall it should be designed and built to accommodate the tree, ie a retaining wall incorporating pier and beam construction. Further, a development application would be required as the height of the retaining wall would exceed the requirements for council's exempt and complying development control plan. We are satisfied that we have jurisdiction to make orders which have the effect of eliminating the need for an application to the council given that the structure which is to replace the existing structure will be to all intents and purposes a structurally sound version of that which is there at the present time." 7 We are therefore satisfied that, by consent, we should make the orders that are sought. 8 In addition, we will include, in those orders, an order that there be no interference with or damage to the roots of the tree during that course of reconstruction and that we will note that there will be no order for costs sought in the proceedings. Tim Moore Commissioner of the Court Graham Brown Commissioner of the Court Peter Thyer Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.