Bertalli v Hutton

[2020] NSWLEC 1060

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bertalli v Hutton [2020] NSWLEC 1060
Hearing dates:	21 November 2019
Date of orders:	09 January 2020
Decision date:	09 January 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [38]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by tree – damage to retaining wall – replacement of dividing fence – other factors contributing to damage – actions taken by the tree owner – amenity and other benefits of the tree – whether the tree should be removed – whether the tree owner should contribute to the cost of repairing the applicant’s retaining wall
Legislation Cited:	Dividing Fences Act 1991 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 St Clair v Kilham [2018] NSWLEC 1071 White v Blacket [2018] NSWLEC 1386
Category:	Principal judgment
Parties:	Anna Louise Bertalli (Applicant) James John Hutton (First Respondent) Catherine Ruth Kelso (Second Respondent)
Representation:	Counsel: M Mantei (Solicitor) (Applicant) J Hutton (Litigant in person) (Respondents)   Solicitors: Planning Law Solutions (Applicant)
File Number(s):	2019/222954
Publication restriction:	No

Judgment

Background to the application

1. The inner Sydney suburb of Birchgrove owes its leafy nature to trees growing on both public and private land. The local landscape character is a result of the local council successfully planning for, and managing, street and park trees, and property owners respectfully maintaining and protecting suitable trees in the private realm.

2. A large and mature Jacaranda tree (Jacaranda mimosifolia) (‘the tree’) grows in the Birchgrove garden of James Hutton and Catherine Kelso (‘the respondents’). During the time they have lived there they have protected the tree during works on their property and maintained it as needed. Ms Bertalli (‘the applicant’) owns the neighbouring property. During redevelopment of the applicant’s property in 2008–2009, a retaining wall on the applicant’s property, close to the common boundary and close to the Jacaranda, was left in place but renovated superficially. For its entire length, but most noticeably near the Jacaranda, that retaining wall is now leaning towards Ms Bertalli’s dwelling. The adjacent dividing fence along the common boundary is also out of alignment. After the retaining wall’s condition was brought to the respondents’ attention, the parties virtually reached agreement on an outcome that would retain the Jacaranda while replacing the retaining wall, with the costs shared equally between the applicant and the respondents.

The application

3. Despite the proposed agreement between the parties, Ms Bertalli then applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), for the following orders:

1. Removal of the Jacaranda tree; and

2. Demolition and re-construction of the retaining wall adjacent to the common boundary between lot 18 DP 112424 and lot 14 DP 1130714; and

3. The owner of the Jacaranda tree be ordered to:

1. erect a sufficient dividing fence on the common boundary between lot 18 DP 112424 and lot 14…