Battiato v Clifton - [2025] NSWLEC 1391

Land and Environment Court

New South Wales

Medium Neutral Citation: Battiato v Clifton [2025] NSWLEC 1391
Hearing dates: 1 May 2025
Date of orders: 03 June 2025
Decision date: 03 June 2025
Jurisdiction: Class 2
Before: Nichols AC
Decision:
The orders of the Court are:
(1) The application is upheld in part.
(2) Within 45 days of the date of these orders the Applicants and the Respondents are each to obtain three quotes from suitable qualified and experienced structural engineers to carry out the services including engineering design drawings and specification of the replacement retaining wall.
(3) Within 60 days of the date of these orders the parties are to swap quotes obtained in order (2) and choose the cheapest, unless they agree on others.
(4) Within 90 days of the date of these orders the Applicants and the Respondents are each to obtain three quotes from a suitably qualified and experienced building contractors.
(5) Within 120 days of the date of these orders the parties are to swap quotes obtained in order (4) and choose the cheapest, unless they agree on others.
(6) Within 60 days of the date of this judgment the Respondent is to engage and pay for an AQF level 3 arborist to remove trees 1, 2, 3, 4, 5, 6, and 7 and all the remaining tree stumps, trunks and roots with a diameter of greater than 100 mm located within 200 mm of the shared property boundary between 20 and 22 Kanangra Avenue Corlette.
(7) Within 365 days of the date of these orders the Applicants and Respondent are to arrange and pay for the design and construction of the replacement retaining wall including obtaining all necessary approvals from Port Stephens Council according to the quotes from orders (3) and (5), sharing the costs 50:50.
(8) Within 30 days of the date of the completion of works in order (7) the parties are to engage and pay for (sharing the costs 50:50) a contractor to construct a new boundary fence located along the top of the new retaining wall on the shared property boundary. The new boundary fence shall be at a maximum height of 1 metre, with a minimum of the top 300 mm section being open.
(9) The Applicant shall provide reasonable access to the property for contractors to undertake works in these orders.
(10) The Respondent shall provide reasonable access to the property for contractors to undertake works in these orders.
(11) The work in order (6) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(12) The application for costs to be paid by the Respondent to the Applicant is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) — whether damage to retaining wall caused by tree — apportionment of costs of rectification — whether a retaining wall is a dividing fence

Legislation Cited:
Conveyancing Act 1919 (NSW), s 177
Dividing Fences Act 1991 (NSW), ss 3, 7, 8, 13A
Land…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Battiato v Clifton

Details

AGLC: Battiato v Clifton [2025] NSWLEC 1391
Case: [2025] NSWLEC 1391
Decision Date: 03 June 2025

CaseChat Overview and Summary

In the matter of Battiato v Clifton, the parties were engaged in a dispute concerning a shared boundary property line. The applicants sought an order from the court for the removal of trees and the construction of a retaining wall along the boundary. The application was heard in the Supreme Court of New South Wales. The legal issues that the court had to determine were whether the applicants were entitled to the relief they sought and, if so, whether the orders should be made. The court considered the nature of the dispute and the need for a fair and practical resolution. After examining the evidence presented by both parties, the court found that the applicants were entitled to the removal of the trees and the construction of a retaining wall. However, the court decided that the applicants were not entitled to the full amount of costs they sought. The court issued orders for the removal of the trees and the construction of the retaining wall, and for the sharing of costs between the parties. The court also dismissed the applicants' claim for costs.

Orders

Orders of the court

The orders of the Court are:

(1) The application is upheld in part.

(2) Within 45 days of the date of these orders the Applicants and the Respondents are each to obtain three quotes from suitable qualified and experienced structural engineers to carry out the services including engineering design drawings and specification of the replacement retaining wall.

(3) Within 60 days of the date of these orders the parties are to swap quotes obtained in order (2) and choose the cheapest, unless they agree on others.

(4) Within 90 days of the date of these orders the Applicants and the Respondents are each to obtain three quotes from a suitably qualified and experienced building contractors.

(5) Within 120 days of the date of these orders the parties are to swap quotes obtained in order (4) and choose the cheapest, unless they agree on others.

(6) Within 60 days of the date of this judgment the Respondent is to engage and pay for an AQF level 3 arborist to remove trees 1, 2, 3, 4, 5, 6, and 7 and all the remaining tree stumps, trunks and roots with a diameter of greater than 100 mm located within 200 mm of the shared property boundary between 20 and 22 Kanangra Avenue Corlette.

(7) Within 365 days of the date of these orders the Applicants and Respondent are to arrange and pay for the design and construction of the replacement retaining wall including obtaining all necessary approvals from Port Stephens Council according to the quotes from orders (3) and (5), sharing the costs 50:50.

(8) Within 30 days of the date of the completion of works in order (7) the parties are to engage and pay for (sharing the costs 50:50) a contractor to construct a new boundary fence located along the top of the new retaining wall on the shared property boundary. The new boundary fence shall be at a maximum height of 1 metre, with a minimum of the top 300 mm section being open.

(9) The Applicant shall provide reasonable access to the property for contractors to undertake works in these orders.

(10) The Respondent shall provide reasonable access to the property for contractors to undertake works in these orders.

(11) The work in order (6) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(12) The application for costs to be paid by the Respondent to the Applicant is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Battiato v Clifton [2025] NSWLEC 1391
Hearing dates:	1 May 2025
Date of orders:	03 June 2025
Decision date:	03 June 2025
Jurisdiction:	Class 2
Before:	Nichols AC
Decision:	The orders of the Court are: (1) The application is upheld in part. (2) Within 45 days of the date of these orders the Applicants and the Respondents are each to obtain three quotes from suitable qualified and experienced structural engineers to carry out the services including engineering design drawings and specification of the replacement retaining wall. (3) Within 60 days of the date of these orders the parties are to swap quotes obtained in order (2) and choose the cheapest, unless they agree on others. (4) Within 90 days of the date of these orders the Applicants and the Respondents are each to obtain three quotes from a suitably qualified and experienced building contractors. (5) Within 120 days of the date of these orders the parties are to swap quotes obtained in order (4) and choose the cheapest, unless they agree on others. (6) Within 60 days of the date of this judgment the Respondent is to engage and pay for an AQF level 3 arborist to remove trees 1, 2, 3, 4, 5, 6, and 7 and all the remaining tree stumps, trunks and roots with a diameter of greater than 100 mm located within 200 mm of the shared property boundary between 20 and 22 Kanangra Avenue Corlette. (7) Within 365 days of the date of these orders the Applicants and Respondent are to arrange and pay for the design and construction of the replacement retaining wall including obtaining all necessary approvals from Port Stephens Council according to the quotes from orders (3) and (5), sharing the costs 50:50. (8) Within 30 days of the date of the completion of works in order (7) the parties are to engage and pay for (sharing the costs 50:50) a contractor to construct a new boundary fence located along the top of the new retaining wall on the shared property boundary. The new boundary fence shall be at a maximum height of 1 metre, with a minimum of the top 300 mm section being open. (9) The Applicant shall provide reasonable access to the property for contractors to undertake works in these orders. (10) The Respondent shall provide reasonable access to the property for contractors to undertake works in these orders. (11) The work in order (6) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (12) The application for costs to be paid by the Respondent to the Applicant is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) — whether damage to retaining wall caused by tree — apportionment of costs of rectification — whether a retaining wall is a dividing fence
Legislation Cited:	Conveyancing Act 1919 (NSW), s 177 Dividing Fences Act 1991 (NSW), ss 3, 7, 8, 13A Land…