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 and Environment Court 1979 (NSW), s 22

Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 7, 9, 10, 12

Texts Cited:

WorkCover NSW, Code of Practice for the Amenity Tree Industry, 1998

Category:

Principal judgment

Parties:

Vince Battiato (First Applicant)
Natalie Battiato (Second Applicant)
Faye Clifton (Respondent)

Representation:

V Battiato and N Battiato (Self-represented) (Applicants)
A Clifton-Cunningham (Agent) (Respondent)

File Number(s):

2025/73081

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Mr and Mrs Battiato of 20 Kanangra Avenue Corlette submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (Trees Act).

2. There is a retaining wall (approximately 10 – 12 metres long) situated between 20 Kanangra Avenue Corlette and the neighbouring property owned by Mrs Clifton, the Respondent, of 22 Kanangra Avenue Corlette. It was accepted by both parties during the hearing that the retaining wall is located on the shared property boundary. Due to the slope of the land the retaining wall also acts as a dividing fence.

3. The retaining wall was constructed in two parts and at two different times during the 1990s, and at the section of concern, is constructed of treated pine timber. This section of the retaining wall is now dilapidated and requires replacement.

4. Previous communication between the parties regarding reconstruction of the retaining wall have since lapsed, however both parties believe the retaining wall is now in need of urgent repair. Some disagreement remains regarding the cause of the dilapidation of the retaining wall and whether the parties should share costs of retaining wall replacement and tree removal.

5. Mr Battiato contends that a (now removed) pine tree located on 22 Kanangra Avenue Corlette contributed to the failure of the dilapidated section of the retaining wall due to root growth.

6. Mrs Clifton had no objection to the removal of the pine tree upon request and organised for the tree to be removed. These works were organised and undertaken in a timely manner. The Respondent has done nothing nor omitted to do anything to worsen any potential damage caused by the tree. Mrs Clifton disputes whether the tree was the main cause of the damage to the retaining wall. There are other smaller trees in proximity to the retaining wall. These remaining trees would need removal to enable replacement of the retaining wall.

7. There is a pine tree located near the boundary at the front of 22 Kanangra Avenue (tree number 5). This tree is located near a concrete pathway located on 20 Kanangra Avenue which is cracking. The Respondent, Mrs Clifton has no objection to the removal of this pine tree.

The Application

8. The Applicant, pursuant to s 7 (Pt 2) of the Trees Act, has applied to the Court seeking orders that: the Respondent remove the remaining trees numbered 1, 3, 4, 7, repair the damage to the retaining wall and fence, remove the trees causing damage to the concrete pathway (trees 5 and 6), and that the Respondent pay all costs to remove trees and repair the retaining wall. The Applicant also requests an order for costs.

Framework of Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW)

9. Part 2 of the Trees Act both enables and confines the Court’s jurisdiction regarding damage or injury caused by trees. The Court must be satisfied of certain matters at s 10 of the Trees Act before making any orders.

10   Matters of which Court must be satisfied before making an order

(1)  The Court must not make an order under this Part unless it is satisfied—

(a)  that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2)  The Court must not make an order under this Part unless it is satisfied that the tree concerned—

(a)  has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)  is likely to cause injury to any person.

10. There is no question that the test at s 10(1) is met as there is ample evidence of communication between the parties. The Respondent disputes that the tree has damaged the retaining wall.

11. If I find that the jurisdictional tests at s 10 are satisfied, I can make orders as described at s 9 of the Trees Act, after considering a range of matters set out at s 12. The orders sought by the Applicants can be made, or I may make other orders as I see fit.

The Applicants’ submissions

12. The Applicant submits that the (now removed) pine tree was the main contributing factor to failure of the retaining wall and that replacement of the wall was urgently required.

13. The Applicant seeks an order for removal of the remaining trees to facilitate the reconstruction of the failing section of the retaining wall.

14. The Applicant seeks an order for construction of a new retaining wall and that the costs of works should be borne by the Respondent because the cause of dilapidation was the (now removed) pine tree.

15. The Applicant seeks an order for the costs to be shared equally for the construction of a replacement fence of a variable height to preserve access to sunlight.

The Respondent’s submissions

16. The Respondent is seeking a just and fair outcome to a lengthy ongoing dispute.

17. The Respondent submits that the (now removed) pine tree was not the main contributor to the dilapidation of the retaining wall and asserts that this was solely due to the age of the wall.

18. The Respondent is seeking completion of works to construct a new retaining wall (costs to be shared equally between the parties).

Findings

The retaining wall

19. The retaining wall is located on the shared property boundary and forms part of the dividing fence between the properties.

20. The sections of the retaining wall were built at different times, using different construction design and building techniques. The upslope portion of the retaining wall is constructed of reinforced concrete and remains functional. No orders for this section of the retaining wall were sought, however for clarity, I see no need to make orders for that part of the wall.

21. The lower section (downslope section) of the retaining wall is no longer fit for purpose mainly because of age, and originally being of insufficient design and structural strength. This section of the wall requires removal and replacement to support the adjoining land. Due to the height of the replacement retaining wall, a development consent will be required from Port Stephens Council for the required works. Orders for reconstruction of this section of the wall will be made.

22. With no expert reports being submitted in evidence I rely on my previous experience in concluding on the likely cause of the dilapidation of the retaining wall. After an inspection of the site myself, I am satisfied that the primary cause of the dilapidation of the retaining wall was age (the wall being greater than 25 years of age and constructed of treated pine), and inadequate design and construction. I observed the remnants of the stump of the (now removed) pine tree. From my observations I conclude that due to the size of the stump and proximity of the stump and roots to the retaining wall, the (now removed) pine tree made a contribution to the overall dilapidation of the retaining wall. Apportionment of the cost of the works has been made at [28]-[35].

23. No other action or omission by the Respondent has contributed to any damage or likelihood of damage to the retaining wall by any trees owned by the Respondent.

The trees

24. The trees have been identified as a camellia (tree 1), pine (tree 2 - now removed), camellia (tree 3), lemon tree (tree 4), pine tree (trees 5, 6, 7). All of the trees are located on 22 Kanangra Avenue. The Respondent has no objection to the removal of any or all of the trees. The parties agree that all of the trees require removal for the construction of a new retaining wall to support that section of land. Should it be required, approval for tree removal from Port Stephens Council may be given during the development application process. Orders for removal of the remaining trees and stumps will be made.

The section of retaining wall near the (now removed) pine tree

25. I am satisfied on the evidence presented and my observations at the onsite hearing that the pine tree (tree 2) has made a contribution to the dilapidation of the retaining wall. Closest to the tree, where the tree’s remaining trunk and where roots were largest, evidence that the retaining wall was more displaced has not been submitted to my satisfaction to the extent that the tree was the main cause of the displacement, only that it made a contribution to the dilapidation.

26. Relying on my observations during the hearing on site I am satisfied to the extent required by s 10(2) of the Trees Act that the Respondent’s (now removed) pine tree was a contributing cause of the damage to the retaining wall and as such, the Court’s jurisdiction to make orders is engaged.

27. The tree has been shown to have exacerbated damage to the section of the retaining wall, thus engaging the Court's jurisdiction, however orders made for any compensation are a matter of discretion after consideration of s 12(h)(i). Given the nature of the retaining wall, it appears that, in the main, the dilapidation was a function of the age, and inappropriate design and construction materials of the retaining wall. Apportionment of damage to the upper section of the retaining wall caused by the tree is provided at [28]-[35].

Apportionment of the cost of the works

28. The Court has jurisdiction to make orders under the Dividing Fences Act at s 13A if, in proceedings under s 7 of the Trees Act, “…the tree that is the subject of those proceedings: has caused, is causing, or is likely in the near future to cause damage to a dividing fence” (s 13A(2)(b)(i) of the Dividing Fences Act).

29. At s 3 of the Dividing Fences Act, the definition of fence does not include a retaining wall except where the wall provides “…support necessary for the support and maintenance of the fence”. In this case, the wire fence located at the top of the retaining wall, which is a dividing fence, relied on the support of the retaining wall, so the retaining wall is a fence for the purposes of the Dividing Fences Act. It follows that s 13A of the Dividing Fences Act gives this Court the jurisdiction to make orders for the entire retaining wall along the common boundary, now that I have found the Respondent’s tree damaged part of that wall. Court orders in these proceedings should, if possible, under the relevant legislation, resolve all matters in dispute between the parties: s 22 of the Land and Environment Court Act 1979.

30. The retaining wall is on the boundary and is a fence for the purposes of the Dividing Fences Act. It is located on the shared property boundary between the parties. The Respondent’s pine tree has made a minor contribution to the wall’s dilapidated condition, but was found to be not the principal cause of the poor state of the wall.

31. Generally, adjoining owners contribute equally to “…the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence” (s 7(1) of the Dividing Fences Act).

32. Even if a “sufficient dividing fence” must be an adequate retaining wall at this site, at s 8 of the Dividing Fences Act the adjoining owners’ contribution is not necessarily equal where damage has been caused by acts of the owners.

8   Contribution where negligent or deliberate act

(1)  Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner.

(2)  Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction.

(3)  In determining an adjoining owner’s liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section.

33. Even though the retaining wall has failed, there is no negligence claim, s 177(2) of the Conveyancing Act 1919 (Conveyancing Act), states:

177   Duty of care in relation to support for land

…

(2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land).

34. The Respondent has done nothing to remove support provided by land on their property. A retaining wall can be considered “supporting land”, but only where it “…has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land” (s 177(4) of the Conveyancing Act). Therefore, I return to s 8 of the Dividing Fences Act.

35. I estimate the contribution of the Respondent’s tree to the condition of the retaining wall is, at most, 5%. The remaining 95% is due to the age, inadequate design and construction materials used and overall condition of the retaining wall. It would be appropriate for the Respondent to contribute to the retaining wall replacement accordingly.

36. Orders have been made such that the removal of the remaining trees and tree stumps required shall be organised and paid for by the Respondent.

37. The retaining wall is located on the shared property boundary and forms part of the dividing fence between the properties. Generally, adjoining owners contribute equally to the construction of a dividing fence and in this case, the dilapidated retaining wall is acting as a fence (s 7(1) of the Dividing Fences Act). Orders have been made to reflect this.

Matters at section 12 of the Trees (Disputes Between Neighbours) Act 2006 (NSW)

38. The location of the tree was close to the boundary, and removal of the tree has already been undertaken except for some remaining trunk and roots. The remaining trees require removal to facilitate construction of a new retaining wall.

39. Consent for removal of the pine tree was not required and no other authorisation was required. No other authorisation is required to remove the remaining trees.

40. The tree had little impact on the surrounding amenity or any other biodiversity or natural value.

41. The tree has been found to have contributed to damage to the Applicant’s property.

42. No other action or omission has contributed to any damage or likelihood of damage, including any act or omission by the Respondent and the impact of any trees owned by the Respondent.

43. Steps taken by the Respondent including tree removal have been completed except for some remaining trunk and roots.

44. As described in [25]-[27] other than the pine tree, the age, inappropriate design and construction materials mainly contributed to the dilapidation of the retaining wall.

45. Neither party’s actions have directly caused the damage. As soon as they were made aware, the Respondent removed the pine tree.

46. The Applicants have taken steps to deal with the dilapidated retaining wall however final arrangements were not completed due to a dispute regarding shared costs with the Respondent.

47. The retaining wall must be fit for purpose and the dilapidated section must be replaced. Although the retaining wall is situated on the shared boundary and was deficient in design and construction, it was damaged by the tree to a certain degree. Costs of repairing the retaining wall shall be shared by the parties to the proportional extent of the damage, see above at [28]-[35]. As all works will affect both parties, both the Applicants and the Respondent shall arrange for the engineering design and necessary consent to be obtained from Port Stephens Council as soon as practicable. Both parties will be responsible and pay for the reconstruction of the retaining wall. Orders will be made to reflect this outcome.

48. The Respondent shall bear the costs of removal of the remaining trees, tree stump and roots located on 22 Kanangra Avenue to facilitate reconstruction of the retaining wall. Orders will be made to reflect this.

49. Both parties have agreed to organise and share costs of a new dividing fence that will be situated on top of the reconstructed retaining wall. The Respondent seeks leave to build a fence similar to the existing wire fence (1 metre high) for safety purposes, whist the Applicant seeks an open fence of a maximum height of 1 metre to allow sunlight into the side pathway area and adjacent rooms. On balance I conclude that a fence height of 1 metre will be suitable for both parties, with at least the top 300 mm being of an open nature such as the examples shown below. Orders will be made to reflect this outcome.

Figure 1 and Figure 2: examples of appropriate fencing

50. There have been no estimated costs for reconstruction of the retaining wall submitted by either party. Costs to be paid by the Respondent for damage to the retaining wall caused by the tree, as a proportion, has been assessed to be a maximum of 5%. This has been accounted for in the orders by apportioning the costs of tree removal through these orders to be required to be paid by the Respondent alone.

50. No orders for costs will be made in relation to costs incurred by the Applicant as I do not consider that the making of such an order is fair and reasonable in the circumstances. The Respondent did not unreasonably delay provision of information or documents, did not act unreasonably during or leading up to the proceedings, did not have an improper purpose, or have or continue with an unreasonable defence or claim.

Orders

52. 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 suitably 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 Respondent are each to obtain three quotes from 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.

P Nichols

Acting Commissioner of the Court

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Decision last updated: 03 June 2025