Kent v Aquilina

[2025] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kent v Aquilina [2025] NSWLEC 1160

Hearing dates:

4 November 2024

Date of orders:

18 March 2025

Decision date:

18 March 2025

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) Orders are at [249].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to brick fence and retaining wall –apprehension of injury

Legislation Cited:

Dividing Fences Act 1991, s 3

Environmental Planning and Assessment Act 1979

Limitation Act 1969

Trees (Disputes Between Neighbours) Act 2006, Pt 2, 4, 7, 8, 9,10,12

Uniform Civil Procedures Rules 2005, Sch 7

Cases Cited:

Baker v Grabovac [2010] NSWLEC 1289

Barker v Kyriakides [2007] NSWLEC 292

Fang v Li [2017] NSWLEC 1503

Robson v Leischke (2008) 72 NSWLR 98

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4970:2009, Protection of trees on development sites 2009

Woollahra Council Tree Preservation Order 2006

Category:

Principal judgment

Parties:

Richard Kent (Applicant)
Nellie Aquilina (Respondent)

Representation:

Counsel:
R Kent (Self-represented) (Applicant)
A Hannam (Respondent)

Solicitors:
FW Ewart and Ewart Solicitors

File Number(s):

2024/237145

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: An old brick fence above a brick retaining wall (the wall) separated the rear yards of neighbouring semi-detached properties in Woollahra. The age of the dwellings was estimated at about 100 years.

2. In her affidavit of 15 October 2024 (Exhibit 1), Nellie Aquilina (the respondent) noted the parties’ properties were originally under a single title, which was subdivided by the installation of a common east-west dividing wall in November 1956. Exhibit 1, Annexure B2 was a copy of the cancelled original title, dated 9 May 1957.

3. The respondent’s mother purchased the south side property in 1957. The property then passed through a chain of succession until Mrs Aquilina inherited part ownership in or around 2009, before she became the sole owner of the property in March 2012.

4. Mrs Aquilina submitted two surveys from North Western Surveys Pty Limited, from December 2010 (Annexure F6 of Exhibit 1), and October 2024 (Exhibit 3). The 2024 surveyor identified the applicant’s property as Lot A and the respondent’s property as Lot B, per the title documents. I will maintain this identification of the properties.

5. The applicant is Richard Kent, an owner of Lot A.

6. In Exhibit 3, at p 2, par 2, the 2024 surveyor said the “wall did not exist” in the title diagram dated December 1956 … “and instead an old fence existed along the entirety of the subject boundary suggesting that ground level difference between Lot A and B was minimal in 1956”. Mrs Aquilina resided at Lot B until 1961. In Exhibit 1, par 5, Mrs Aquilina said she did “not know precisely when the dividing wall was constructed”.

7. Exhibit 3, at p 1, par 8 noted, “It appears that the wall is retaining lot B, as lot B is up to approximately 0.9m higher than lot A.” The common boundary extended approximately east-west from the front to the rear…