Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292

Land and Environment Court New South Wales

Medium Neutral Citation: Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292 Hearing dates: 26 September 2011 Decision date: 04 October 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; some tree removal ordered; part compensation ordered Catchwords: TREES [NEIGHBOURS] Damage to property; dividing fence; retaining wall; relevant provisions of the Dividing Fences Act 1991 Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Dividing Fences and Other Legislation Amendment Bill 2008 Interpretation Act 1987 Cases Cited: Yared v Glenhurst Gardens Pty [2002] NSWSC 11 Dean v Ellsworth [2010] NSWLEC 1032 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr F Riggio (Applicant) The Estate of the late Phyllis Annette Lockard (Respondent) Representation: Applicant: Mr F Riggio (Litigant in person) Respondent: Mr D Cabal (Solicitor) Respondent: Dunn Legal (Robert T. Dunn & Co.) File Number(s): 20494 of 2011

Judgment 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Narrabeen against the estate of the owner of trees growing on an adjoining property. 2The application was originally made against Mr Stewart Lockard. However, leave was granted at the on-site hearing to amend the application to the Estate of the late Phyllis Annette Lockard as the title of the land has not as yet been transferred to Mr Stuart Lockard, her son and executor. 3The applicant is seeking Court orders for the removal of 6 nominated trees that he contends are causing damage to a fence and retaining wall. Orders are also sought for the respondent to pay for the rebuilding of the full length of the existing retaining wall and the full length of the dividing fence from the street to the rear of the parties' properties. These orders are sought pursuant to s 7 of the Trees Act and s 13A of the Dividing Fences Act 1991 . Quotes obtained by the applicant in 2008 for the works he desires advise sums of $49,302 and $49,385. 4Alternative orders filed by the respondent include the removal of Tree 4 at the respondent's expense; the equally shared cost of a survey to establish the exact location of the boundary; and the equally shared cost of replacing the wall and the fence. A quote dated 14 September 2011 gives a cost of $25,762 for the works (excluding tree removal).