Land and Environment Court
New South Wales
Medium Neutral Citation: Golden v French [2022] NSWLEC 1642 Hearing dates: 14 September 2022 Date of orders: 18 November 2022 Decision date: 18 November 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders:
(1) The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to retaining wall and risk of injury claimed, reasonable wear and tear, no consequential damage or genuine risk found
Legislation Cited: State Environmental Planning Policy (Vegetation in non-rural areas) 2017
Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Golden v Li [2021] NSWLEC 1751
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited: Australia Standards - AS4373:2007 Pruning of amenity trees (2007)
Ku-ring-gai Development Control Plan 2021
Category: Principal judgment Parties: Patrick Golden (Applicant)
Michael French (Respondent)Representation: P Golden (Self-represented) (Applicant)
M French (Self-represented) (Respondent)
File Number(s): 2022/198365 Publication restriction: No
Judgment
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COMMISSIONER: Patrick Golden, the applicant, shares a boundary at his Turramurra property with the respondent, Michael French. The applicant’s property is a deep rectangular block with the long boundaries running from the south-east at the street frontage to north-west at the rear.
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The rear of the respondent’s land meets the applicant’s north-eastern side boundary towards the back of the applicant’s land, as do the rear boundaries of both of the respondent’s side neighbours. The respondent’s side boundaries run from north-east at the front to south-west at the rear.
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Mr Golden has a stabilised loam tennis court at the back of his rear yard which extends to both side boundaries, and is more than 50 years old. His land slopes down appreciably towards the west, such that extensive excavation, particularly around the east-side corner, was undertaken to create the court’s level surface.
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A slightly backward leaning tall masonry retaining wall was built just inside and parallel to the boundary on the court’s north-eastern side. The wall’s quality and structural integrity is unknown, and concealed by cement render, but it has been fit for purpose for over 50 years. The respondent’s back yard is at the level of the top of this retaining wall.
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To retain the south-eastern side of the excavated eastern corner, a banked retaining wall was created with an angle of about 40 degrees from vertical. This banked wall was stabilised with bush rock of various sizes, mortared together.
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A Jacaranda mimosifolia (Jacaranda) (the tree) is growing in the southern corner of the respondent’s back yard close to the top of the walls. It is long established and mature, but is relatively small for its age and displays signs of stress. The tree’s location near the retaining walls may be subject to sharp drainage and thus low moisture availability, and/ or the tree may have been subject to past root damage.
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Mr Golden claimed…
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- AGLC
- Golden v French [2022] NSWLEC 1642
- Case
- [2022] NSWLEC 1642
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the provisions of the Act, which authorised the detention of individuals based on suspicion of activities that could harm critical infrastructure, were supported by the Commonwealth's legislative powers. This involved examining the scope of the Commonwealth's powers under section 51 of the Constitution, including the corporations power, the defence power, and the external affairs power. The Court had to assess whether the Act was a valid exercise of these powers and whether it was within the bounds of the Commonwealth's authority to enact such legislation.
In delivering its judgment, the Court found that the provisions of the Act were valid exercises of the Commonwealth's legislative powers. The Court determined that the Act was supported by the corporations power, as the activities targeted by the Act were related to corporations engaged in critical infrastructure. Furthermore, the Court held that the Act fell within the scope of the defence power, as it was designed to protect critical infrastructure that is essential for national security. Additionally, the Court concluded that the Act was also supported by the external affairs power, given that Australia's obligations under international treaties related to critical infrastructure protection and national security justified the legislation. As a result, the Court dismissed Golden's challenge and upheld the constitutionality of the Act. The application for a declaration of invalidity was refused.
Orders
Orders of the court
The Court orders:
(1) The application is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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