Carey v Pattinson

[2020] NSWLEC 1515

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Carey v Pattinson [2020] NSWLEC 1515

Hearing dates:

03 September 2020

Date of orders:

03 September 2020

Decision date:

03 September 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to retaining wall – excavation required

Legislation Cited:

Conveyancing Act 1919

Trees (Disputes Between Neighbours) Act 2006

Uniform Civil Procedures Rules 2005

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Category:

Principal judgment

Parties:

Michael Carey (First Applicant)
Kelly Carey (Second Applicant)
Leanne Pattinson (First Respondent)
Adam Pattinson (Second Respondent)

Representation:

Counsel:
M Carey (Litigant in person) (First Applicant)
K Carey (Litigant in person) (Second Applicant)
A Pattinson (Litigant in person) (Second Respondent)

File Number(s):

2020/23050

Publication restriction:

No

Judgment

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

Background

1. ACTING COMMISSIONER: Mr and Mrs Carey (the applicants) and Mr and Mrs Pattinson (the respondents), share a side boundary between their properties on fairly steeply sloping land in Austinmer. The applicants’ property is located higher up the slope, and a retaining wall, with a fence on top, separates the properties.

2. Mr and Mrs Pattinson purchased and occupied their property in 1996, at which point a Cinnamomum camphora (Camphor laurel) (the tree) was already well established in the rear of their side yard. Its trunk base is about two to three metres from the common boundary, and about one metre lower than the base of the retaining wall.

3. The applicants, who occupied their property about seven years ago, became aware of cracking render, and separation between the side of their concrete slab driveway and the retaining wall, in 2018, and commissioned a report from engineering specialists. As noted by the engineer, “in layman’s terms, you are concerned that the retaining wall is falling over towards” the respondents’ property. Mr and Mrs Carey were the second owners of their house, having purchased it from an owner-builder, who also constructed the retaining wall.

4. This initial report, from Mr Anthony Barthelmess, of Rienco Consulting, dated 3 August, 2018 (Exhibit A), noted slight rotation in the wall, which was “not immediate cause for concern”, with four potential causes:

1. Shrinking or swelling of the foundation material, in both yards, which appears to be loose clay – exacerbated by unseasonably dry conditions.

2. Minor movement of the informal retaining wall in the rear yard of the respondents’ property. The footing of the boundary wall appears to be in the zone of influence of the respondents’ wall, and as such any movement in their wall will affect the stability of your wall.

3. The large tree adjacent to the wall in the respondents’ yard, the dense, shallow root system of which may be impacting on the applicants’ retaining wall, and…