Golden v French

[2022] NSWLEC 1642

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

Stevens v Russell [2016] NSWLEC 1233

Wisdom v Payn [2011] NSWLEC 1012

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. Mr Golden claimed…