McCallum v Riordan & Anor [2011] NSWLEC 1009

Land and Environment Court New South Wales

Medium Neutral Citation: McCallum v Riordan & Anor [2011] NSWLEC 1009 Hearing dates: 24 January 2011 Decision date: 24 January 2011 Jurisdiction: Class 2 Before: Moore SC Decision: Application dismissed Catchwords: TREE DISPUTE - Same facts as previously determined application; no change in circumstances Cases Cited: McCallum v Riordan & Anor [2010] NSWLEC 1232 Hinde v Anderson and anor [2009] NSWLEC 1148 Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Category: Principal judgment Parties: G McCallum (Applicant) D Riordan & L Farrell (Respondents) Representation: In person (Applicant) No appearance (Repondent) File Number(s): 20766 of 2010

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1On 17 August 2010, Fakes C heard and determined, in an extemporaneous decision (see McCallum v Riordan & Anor [2010] NSWLEC 1232), an application between the same parties as are involved in these proceedings and concerning the same tree as is in these proceedings. During the course of that decision, she set out comprehensively the physical circumstances that she observed during the course of her site inspection at the on-site hearing. 2I have observed the same matters from the applicant's side of the fence and see nothing that would appear to vary from her factual findings. Certainly, the findings that Fakes C made about the entire absence of proof of causation of displacement of the retaining wall by the roots of the tree on the adjoining property are equally applicable to my inspection this morning. 3The position is that a person is not able to make repeated applications to the Court concerning the same factual circumstances unless there is some material factual change. If there is a material change in circumstances, as was discussed in Hinde v Anderson and anor [2009] NSWLEC 1148, there is jurisdiction for the Court to hear and determine a further application. 4Absent such change in circumstances, there is no basis upon which the Court can reach any finding contrary to those that were obtained from the earlier hearing, when the issues that arise between the parties are identical in terms to those that were set out in the original application (see the discussion by the Court of Appeal in Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177) as is the position here. 5The consequence is that there is absolutely no basis upon which I could depart from the factual position found by Fakes C and the application is dismissed. Tim Moore Senior Commissioner 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. Decision last updated: 25 January 2011