McCallum v Riordan

[2010] NSWLEC 1232

Land and Environment Court

of New South Wales

CITATION:

McCallum v Riordan & Anor [2010] NSWLEC 1232

PARTIES:

APPLICANT
Mrs G McCallum

RESPONDENTS
Mr D Riordan
Ms L Farrell

FILE NUMBER(S):

20421 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property,
injury to persons
Compensation
Retaining wall,
removal refused

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

17/08/2010

 
DATE OF JUDGMENT: 

17 August 2010

EX TEMPORE JUDGMENT DATE:

17 August 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mrs G McCallum [litigant in person]

RESPONDENTS
Dougmal Real Estate [agent]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

17 August 2010

20421 of 2010 McCallum v Riordan & anor

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in St Andrews against the owners of tree growing on an adjoining property. The respondents were represented by their real estate agent.

2 The applicant is seeking the removal of the tree as she contends that it is causing damage to a metal retaining wall and that branches may fall from the tree and cause injury to someone. The applicant is seeking compensation for the repair of the damage retaining wall.

3 The tree is a multi-stemmed Cordyline australis growing in the rear garden of the respondents’ property. The tree is about 4 m in height and is growing about 600 mm from the fence that divides the two properties. The tree is healthy and shows no signs that would suggest that a branch, or indeed any part of the tree, might fail and cause injury to any person on either property.

4 The applicant built the house and associated retaining walls some 33 years ago. The retaining wall is constructed of two panels of clip-lock style metal fencing about 150 mm apart with a metal capping on the top. That is, there is an outer ‘skin’ and an inner ‘skin’. The retaining wall is approximately 1.2m high and retains a bed of soil approximately 500mm wide. There are no plants growing in this retained bed. According to the applicant, the backfill was a mixture of whatever soil was available at the time of construction. The natural soils in the locality are clays.

5 The retaining wall was necessitated because of the natural fall in the land. The land slopes generally from the north-west to the south-east. The applicant’s property is down-slope of the respondents’ property.

6 The damage said to be caused by the tree, is an outward deviation of the top of one section of the retaining wall of about 100mm. The metal is not broken and the wall is still functional. The deviation is in the vicinity of the Cordyline. It is noted that there is no displacement of the metal dividing fence between the two properties in the vicinity of the tree.

7 The applicant stated that she noticed the damage early this year and attempted several times to bring it to the attention of the respondents’ real estate agents, but with no success. The applicant also asked an arborist to look at the tree and provide a quote for its removal. The applicant stated that the arborist thought the damage was due to the tree but there is no written statement to that effect.

8 For about 2 metres either side of the deviation, the base of the metal retaining wall is rusted and moss is growing along that same section. The north-eastern and south-western extremities of the retaining wall are much less rusted and moss is not obvious.

9 The applicant contends that the tree has damaged the inner part of the wall allowing soil to move into the former cavity between the two sections of metal, thus putting pressure on the outer wall. Tapping of the wall along its length did indicate a change in resonance that could indicate soil behind the outer skin. This was in the same vicinity of the moss and the greatest level of rusting.

10 The sewer and storm water services are located under a scoria-covered pathway close to the retaining wall between it and the applicant’s house. The applicant stated that a section of the storm water system at the south-western end was recently repaired. A downpipe off the applicant’s house connects to this system at the north-eastern end. The retaining wall and the downpipe are shown in photographs attached to the application.

11 It was noticed that a similar style retaining wall along the north-eastern or rear boundary of the applicant’s property was rusted along the base. This wall retains a garden bed in which quite large (but pruned) shrubs are growing. There is no displacement of this wall.

12 On the respondents’ property, the applicant pointed out part of the Cordyline overhanging the gutter of the respondents’ house. The applicant contends that when it rains, water overflows the gutter and flows onto her property. The applicant states that the gutter is blocked by leaves.

13 It was noticed that in the vicinity of the tree, there is a downpipe from the respondents’ house. It is assumed that this connects to a storm water system. It was also observed that the respondents’ land slopes towards the applicant’s property.

14 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person. Only if one or more of these tests are satisfied, does the Court have the jurisdiction to make an order under s 9.

15 In this matter, there is no evidence that this tree is likely to cause injury to any person.

16 With respect to the deviation of the fence, whilst there is a locational connection between the deflection and the tree, there is no evidence, such as roots protruding from the base of the wall, to prove that the tree has caused the damage although it is understandable why the applicant has come to that conclusion.

17 It is possible that soil has moved into the cavity between the metal panels of the retaining wall. The wall is 33 years old and there may be some deterioration of the inner wall. The extent of the rust and the moss suggests a possible drainage problem. It has already been mentioned that the local soil is clay and the applicant’s property is down-slope. The combination of soil and moisture may be placing pressure on a weakened wall. However, there is no evidence to link the tree to the damage, apart from its location.

18 Therefore as the nexus between the tree and the damage is not proven, no orders can be made for any interference with the tree or for compensation.

19 In conclusion, as none of the tests under s 10(2) are satisfied, the Court has no jurisdiction.

20 The Orders of the Court are:

1. The application to remove the tree is dismissed.
2. The application for compensation is dismissed.

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