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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCallum v Riordan

Details

AGLC: McCallum v Riordan [2010] NSWLEC 1232
Case: [2010] NSWLEC 1232
Decision Date: 17 August 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Mrs. G. McCallum filed an application against Mr. D. Riordan and Ms. L. Farrell seeking the removal of a tree on the respondents' property, which she claimed was causing damage to a retaining wall on her property and posed a risk of falling branches. The application was made under the Trees (Disputes Between Neighbours) Act 2006. The tree in question was a multi-stemmed Cordyline australis, growing close to the fence dividing the two properties. The applicant argued that the tree was damaging the retaining wall and that there was a risk of branches falling and causing injury. The court had to determine whether the tree had caused, was causing, or was likely to cause damage to the applicant's property, or was likely to cause injury to any person.

The court considered the evidence presented and noted that there was no direct evidence linking the tree to the damage of the retaining wall. The applicant had attempted to establish a connection between the tree and the damage by pointing to the tree's proximity to the wall and the presence of rust and moss on the wall. However, the court found that the connection was not proven, as there was no evidence of tree roots protruding from the base of the wall or any other direct link between the tree and the damage. Additionally, the court found that there was no evidence that the tree was likely to cause injury to any person.

The court concluded that, as none of the tests under section 10(2) of the Act were satisfied, it did not have jurisdiction to make an order for the removal of the tree or for compensation. The court dismissed both the application to remove the tree and the application for compensation.

The court's final orders were that the application to remove the tree was dismissed, and the application for compensation was dismissed. This decision highlights the importance of establishing a direct link between the tree and any alleged damage or risk of injury in order for a court to grant an order under the Trees (Disputes Between Neighbours) Act 2006.

Orders