McCallum v Riodan & anor

[2011] NSWLEC 1009

Land and Environment Court

New South Wales

Medium Neutral Citation:	McCallum v Riordan & Anor [2011] NSWLEC 1009
Hearing dates:	24 January 2011
Decision date:	24 January 2011
Jurisdiction:	Class 2
Before:	Moore SC
Decision:	Application dismissed
Catchwords:	TREE DISPUTE - Same facts as previously determined application; no change in circumstances
Cases Cited:	McCallum v Riordan & Anor [2010] NSWLEC 1232 Hinde v Anderson and anor [2009] NSWLEC 1148 Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Category:	Principal judgment
Parties:	G McCallum (Applicant) D Riordan & L Farrell (Respondents)
Representation:	In person (Applicant) No appearance (Repondent)
File Number(s):	20766 of 2010

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

1. On 17 August 2010, Fakes C heard and determined, in an extemporaneous decision (see McCallum v Riordan & Anor [2010] NSWLEC 1232), an application between the same parties as are involved in these proceedings and concerning the same tree as is in these proceedings. During the course of that decision, she set out comprehensively the physical circumstances that she observed during the course of her site inspection at the on-site hearing.

1. I have observed the same matters from the applicant's side of the fence and see nothing that would appear to vary from her factual findings. Certainly, the findings that Fakes C made about the entire absence of proof of causation of displacement of the retaining wall by the roots of the tree on the adjoining property are equally applicable to my inspection this morning.

1. The position is that a person is not able to make repeated applications to the Court concerning the same factual circumstances unless there is some material factual change. If there is a material change in circumstances, as was discussed in Hinde v Anderson and anor [2009] NSWLEC 1148, there is jurisdiction for the Court to hear and determine a further application.

1. Absent such change in circumstances, there is no basis upon which the Court can reach any finding contrary to those that were obtained from the earlier hearing, when the issues that arise between the parties are identical in terms to those that were set out in the original application (see the discussion by the Court of Appeal in Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177) as is the position here.

1. The consequence is that there is absolutely no basis upon which I could depart from the factual position found by Fakes C and the application is dismissed.

Tim Moore

Senior Commissioner

Decision last updated: 25 January 2011