McCallum v Riordan & Anor [2010] NSWLEC 1232

Land and Environment Court of New South Wales

CITATION : McCallum v Riordan & Anor [2010] NSWLEC 1232

APPLICANT Mrs G McCallum PARTIES : RESPONDENTS Mr D Riordan Ms L Farrell

FILE NUMBER(S) : 20421 of 2010

CORAM: Fakes C

TREES (NEIGHBOURS) :- Damage to property, injury to persons KEY ISSUES: Compensation Retaining wall, removal refused

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 17/08/2010

DATE OF JUDGMENT: 17 August 2010

EX TEMPORE JUDGMENT DATE : 17 August 2010

APPLICANT Mrs G McCallum [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENTS Dougmal Real Estate [agent]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

17 August 2010

20421 of 2010 McCallum v Riordan & anor

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in St Andrews against the owners of tree growing on an adjoining property. The respondents were represented by their real estate agent. 2 The applicant is seeking the removal of the tree as she contends that it is causing damage to a metal retaining wall and that branches may fall from the tree and cause injury to someone. The applicant is seeking compensation for the repair of the damage retaining wall. 3 The tree is a multi-stemmed Cordyline australis growing in the rear garden of the respondents' property. The tree is about 4 m in height and is growing about 600 mm from the fence that divides the two properties. The tree is healthy and shows no signs that would suggest that a branch, or indeed any part of the tree, might fail and cause injury to any person on either property. 4 The applicant built the house and associated retaining walls some 33 years ago. The retaining wall is constructed of two panels of clip-lock style metal fencing about 150 mm apart with a metal capping on the top. That is, there is an outer 'skin' and an inner 'skin'. The retaining wall is approximately 1.2m high and retains a bed of soil approximately 500mm wide. There are no plants growing in this retained bed. According to the applicant, the backfill was a mixture of whatever soil was available at the time of construction. The natural soils in the locality are clays. 5 The retaining wall was necessitated because of the natural fall in the land. The land slopes generally from the north-west to the south-east. The applicant's property is down-slope of the respondents' property. 6 The damage said to be caused by the tree, is an outward deviation of the top of one section of the retaining wall of about 100mm. The metal is not broken and the wall is still functional. The deviation is in the vicinity of the Cordyline. It is noted that there is no displacement of the metal dividing fence between the two properties in the vicinity of the tree.