Kirby v Herbert

[2020] NSWLEC 1691

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kirby v Herbert [2020] NSWLEC 1691

Hearing dates:

18 September 2020

Date of orders:

18 September 2020

Decision date:

18 September 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring trees – whether the damaged property (a retaining wall) is on the boundary – the trees have been removed – orders no longer sought for a retaining wall

Legislation Cited:

Trees (Disputes Between Neighbours Act) 2006

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category:

Principal judgment

Parties:

Ross Kirby (First Applicant)
Sharyn Hill (Second Applicant)
Christopher Herbert (First Respondent)
Elizabeth Ann Crawford (Second Respondent)

Representation:

Counsel
R Kirby (Litigant in Person) (First Applicant)
S Hill (Litigant in Person) (Second Applicant)
G Long (Solicitor) (Respondents)

Solicitors
Long Legal Pty Ltd (Respondents)

File Number(s):

2020/137701

Publication restriction:

No

Judgment

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

Background to the application

1. By way of background, this application concerns trees and a retaining wall on adjoining properties in Coal Point. There is obviously some extensive history between Mr Kirby and Ms Hill (‘the applicants’) and Ms Crawford and Mr Herbert (‘the respondents’) concerning the retaining wall and other issues.

2. When the applicants constructed a dwelling on their property, they proposed replacing an existing retaining wall on or near the common boundary with a new retaining wall, and a ‘deed of agreement’ was struck up between the parties. In that agreement, the applicants would bear the cost of replacing the retaining wall. Afterwards, upon being informed that a joint development application would be required, the applicants withdrew their intention to replace the retaining wall and have left it as it was.

3. After the applicants saw the retaining wall’s condition deteriorating, they applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for nine palms on the respondents’ land (‘the trees’) to be removed and for the retaining wall to be replaced, and an order for costs. Regarding costs, Commissioners of the Court do not have the power to award costs, but we have at least discussed that issue at today’s hearing and hopefully the parties are fully informed on the process should they wish to pursue costs.

4. The trees have been removed since the application was filed. The applicants now seek to amend their application, and I have granted them leave to do so, so that they no longer seek orders for the retaining wall to be replaced. There is still some disagreement over whose retaining wall it is.

The hearing

5. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

The applicants no longer seek orders

6. According to the applicants, the retaining wall is entirely on the respondents’ property, or was entirely on the respondents’ property until the palms pushed part of it onto the boundary. Now that the palms have been removed, they say the retaining wall is no longer dangerous and they no longer seek orders for its replacement. They do not seek orders for the palms’ stumps to be ground out or removed.

7. I note here that, as per s 4(4) of the Trees Act, the removal of the palms prior to the hearing would not prevent the Court making orders if jurisdictional tests at s 10 were satisfied.

The respondents see no need for orders

8. According to the respondents, the retaining wall is, and always has been, at least partly on the boundary, so its ownership is shared by the parties. The survey plan appears to show this. I find the respondents’ position on this more persuasive, but as it turns out, that is not a matter I need to consider.

9. There is no evidence in front of me that the retaining wall needs replacement. It does not pose a risk such that I might be inclined to make orders to resolve a dispute. The respondents submitted that the deed of agreement between the parties is still live, so if the applicants wish to replace the retaining wall they can do so at their own expense.

No orders will be made

10. Given that neither the applicants nor the respondents want any orders, I cannot see that it would be appropriate to make any. I am not satisfied that the retaining wall was damaged by the trees, nor that it requires replacing. Despite the applicants’ submissions regarding the retaining wall, they appear unsatisfied with the current situation and with the process thus far. It seems that they wanted the retaining wall replaced if it would be at the respondents’ expense. They have been unable to gain their desired outcome. Some level of dispute may continue here, but it is not one I can resolve by making orders today.

11. Should any consideration be made for costs in future, I note that the respondents have gone to some trouble preparing a response to an application for both the removal of trees and the replacement of a retaining wall. The applicants have changed their minds on the need to replace the retaining wall.

Orders

12. For the reasons given above, the Court orders:

1. The application is refused.

2. The exhibits are returned, except for Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Amendments

11 January 2021 - Amendment to Jurisdiction on cover sheet from "Class 1" to "Class 2".

11 January 2021 - Correction to the 'Parties' on the cover sheet.

Decision last updated: 11 January 2021