Savva v Curtis [2018] NSWLEC 1599

Land and Environment Court New South Wales

Medium Neutral Citation: Savva v Curtis [2018] NSWLEC 1599 Hearing dates: 25 October 2018 Date of orders: 25 October 2018 Decision date: 25 October 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall – whether the tree caused the damage – other contributing factors Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Helen Savva (Applicant) Dolce Curtis (Respondent) Representation: H Savva, litigant in person (Applicant) D Curtis, litigant in person (Respondent) File Number(s): 2018/249385 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. In her back garden, Dolce Curtis ('the respondent') has a Jacaranda tree, some six metres tall. It is close to the common boundary she shares with Helen Savva ('the applicant'). 2. Ms Savva has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the tree to be removed and for a retaining wall on her property to be repaired. Mrs Curtis does not want to remove the tree.

The onsite hearing 1. The onsite hearing allowed observations of the tree and Ms Savva's property. 2. The Jacaranda is healthy and without significant structural defects. It provides amenity and shade, and contributes to the landscape of Mrs Curtis' garden. 3. Ms Savva claimed in her application that a branch of the Jacaranda is pushing against the boundary fence. However, all branches are well clear of the fence and will not interfere with it in the foreseeable future. 4. Ms Savva claims debris from the tree covers the paved area of her garden, the leaves and flowers creating a slippery hazardous surface. 5. Ms Savva pointed out the retaining wall that supports a raised garden bed on her property, along the common boundary. The wall increases in height along the boundary so that it is approximately 1.5 metres tall near the Jacaranda. At its closest to the Jacaranda, the wall visibly bows out and is cracked. Ms Savva says the retaining wall is 'triple-brick'. She says the damage is caused by the Jacaranda. She says another tree grew from its roots in her own garden bed, its stem reaching some 300 mm in diameter, but she had this removed and sprayed its stump with poison. 6. Ms Savva says a Council officer issued a permit for the removal of Mrs Curtis' Jacaranda due to damage it was causing and for public safety reasons. Ms Savva is scared the tree will collapse, or limbs will fall, and hit her grandchildren, who play in this area.