The Owners – Strata Plan No 7655 v The Owners – Strata Plan No 50081 [2018] NSWLEC 1222

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 7655 v The Owners – Strata Plan No 50081 [2018] NSWLEC 1222 Hearing dates: 20 March 2018 Date of orders: 20 April 2018 Decision date: 20 April 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at [45]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – whether damage to retaining wall caused by tree – whether all or part of retaining wall requires rectification – whether retaining wall damage can be rectified without removing the tree – apportionment of costs of rectification Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Price v Dougherty [2013] NSWLEC 1089 St Clair v Kilham [2018] NSWLEC 1071 Stanford v Hall [2012] NSWLEC 1217 Category: Principal judgment Parties: The Owners – Strata Plan No 7655 (Applicants) The Owners – Strata Plan No 50081 (Respondents) Representation: Solicitors G Green, Pikes & Verekers Lawyers (Applicants) D Newhouse, Newhouse & Arnold Solicitors (Respondents) File Number(s): 2017/291606 Publication restriction: No

Judgment

Background 1. A large tree grows on a property in Kirribilli that, until early last century, was part of the property of Kirribilli House. It is within a Heritage Conservation Area. A Statement of Significance for the property describes the building, but not the landscape or the tree. The property belongs to the owners of Strata Plan No 50081 ('the respondents'). The original building now contains multiple dwellings. 2. The Liquidamber (Liquidambar styraciflua) ('the tree') grows close to the respondents' eastern boundary, a common boundary shared with neighbouring land belonging to the owners of Strata Plan No 7655 ('the applicants'). The land slopes down to the east, with the applicants' land abutting the harbour. 3. The apartment block on the applicants' land, of a much larger scale than the respondents', is separated from the common boundary by their driveway. The higher ground on the respondents' land is supported by a brick retaining wall, which is on the applicants' land with its back face (against the soil) apparently running along the common boundary, at least at the wall's base. 4. Apart from the Liquidamber, other smaller trees and shrubs grow along the respondents' garden area near the wall, including two trees that are part of the application but were recently removed by the respondents: an avocado and a privet. 5. The retaining wall is displaced from its original vertical alignment, most notably near the Liquidamber in its northern part, and less so for a section near its southern end.