McMahon v Slack-Smith - [2022] NSWLEC 1639

Land and Environment Court

New South Wales

Medium Neutral Citation: McMahon v Slack-Smith [2022] NSWLEC 1639
Hearing dates: 18 August 2022
Date of orders: 17 November 2022
Decision date: 17 November 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) The respondents, at their expense, shall carefully remove the two or three displaced retaining wall concrete blocks near T1, and cleanly sever and remove roots from T1 and from the adjacent Umbrella tree from the area now absent of concrete blocks, and in close proximity.
(2) The respondents, at their expense, shall carefully reinstate the concrete blocks into the wall onto a concrete base, and tightly mortar them into position.
(3) The respondents, at their expense, shall cleanly sever and remove roots from T2 and T3, where they contact and exert pressure on wall bricks. This shall be completed with a sharp hand saw, and a sharp chisel and mallet where appropriate. A gap between roots and bricks of at least one centimetre shall be provided to allow for root growth between inspections.
(4) The respondents, at their expense, shall inspect the retaining wall twice each year, and prune roots that may be near the retaining wall according to the procedures of Order 3.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to retaining wall - high hedges – views and privacy

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12. Pt 2A s14

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Wisdom v Payn [2011] NSWLEC 1012
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Standards Australia AS4373:2007 Pruning of amenity trees (2007)
Tweed Shire Council Development Control Plan 2008

Category: Principal judgment
Parties: John McMahon (Applicant)
Christopher Slack-Smith (First Respondent)
Fiona Slack-Smith (Second Respondent)
Representation: J McMahon, (Self-represented) (Applicant)
C Slack-Smith (Self-represented) (First Respondent)
F Slack-Smith (Self-represented) (Second Respondent)

File Number(s): 2022/161137
Publication restriction: No

Judgment

COMMISSIONER: Mr McMahon, the applicant, who occupied his Banora Point property in 2014, submitted an application, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act).
The applicant shares a common rear property boundary with the respondents’, Mr and Mrs Slack-Smith. The applicant’s property is located at a higher elevation than the respondents’ land.
When the respondents occupied their property in 2017, long established trees were growing within a garden bed at the rear of their back yard, close to the base of the applicant’s retaining wall, which runs along the rear of his land, just inside the common boundary. The boundary runs north – south and is delineated by a timber paling fence above the retaining wall.
The application under Pt 2 of the Trees…

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 McMahon v Slack-Smith

Details

AGLC: McMahon v Slack-Smith [2022] NSWLEC 1639
Case: [2022] NSWLEC 1639
Decision Date: 17 November 2022

CaseChat Overview and Summary

McMahon and Slack-Smith were neighbours in a residential setting. A retaining wall separated their properties, with trees growing on the Slack-Smith side. The McMahons alleged that roots from the Slack-Smith trees had infiltrated the retaining wall, causing damage and instability. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the Slack-Smiths were liable for the damage caused to the retaining wall by the tree roots. The court had to determine whether the Slack-Smiths were negligent in allowing the tree roots to grow and infiltrate the wall, and if so, what remedies were appropriate.

The court found that the Slack-Smiths were indeed negligent in allowing the tree roots to cause damage to the retaining wall. The court considered the nature of the trees, their proximity to the wall, and the lack of action by the Slack-Smiths to prevent root infiltration. The court held that the Slack-Smiths should have been aware of the potential for tree roots to cause damage and should have taken steps to prevent it. The court also considered the appropriate remedies, including the removal of damaged concrete blocks, the severing and removal of roots, and the reinstatement of the retaining wall. The court ordered the Slack-Smiths to remove and reinstate the damaged concrete blocks, sever and remove roots from the trees, and inspect and prune the roots twice a year. The court also ordered the Slack-Smiths to pay for the costs of the work.

Orders

Orders of the court

The Court orders are:

(1) The respondents, at their expense, shall carefully remove the two or three displaced retaining wall concrete blocks near T1, and cleanly sever and remove roots from T1 and from the adjacent Umbrella tree from the area now absent of concrete blocks, and in close proximity.

(2) The respondents, at their expense, shall carefully reinstate the concrete blocks into the wall onto a concrete base, and tightly mortar them into position.

(3) The respondents, at their expense, shall cleanly sever and remove roots from T2 and T3, where they contact and exert pressure on wall bricks. This shall be completed with a sharp hand saw, and a sharp chisel and mallet where appropriate. A gap between roots and bricks of at least one centimetre shall be provided to allow for root growth between inspections.

(4) The respondents, at their expense, shall inspect the retaining wall twice each year, and prune roots that may be near the retaining wall according to the procedures of Order 3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McMahon v Slack-Smith [2022] NSWLEC 1639
Hearing dates:	18 August 2022
Date of orders:	17 November 2022
Decision date:	17 November 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) The respondents, at their expense, shall carefully remove the two or three displaced retaining wall concrete blocks near T1, and cleanly sever and remove roots from T1 and from the adjacent Umbrella tree from the area now absent of concrete blocks, and in close proximity. (2) The respondents, at their expense, shall carefully reinstate the concrete blocks into the wall onto a concrete base, and tightly mortar them into position. (3) The respondents, at their expense, shall cleanly sever and remove roots from T2 and T3, where they contact and exert pressure on wall bricks. This shall be completed with a sharp hand saw, and a sharp chisel and mallet where appropriate. A gap between roots and bricks of at least one centimetre shall be provided to allow for root growth between inspections. (4) The respondents, at their expense, shall inspect the retaining wall twice each year, and prune roots that may be near the retaining wall according to the procedures of Order 3.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to retaining wall - high hedges – views and privacy
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12. Pt 2A s14
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Standards Australia AS4373:2007 Pruning of amenity trees (2007) Tweed Shire Council Development Control Plan 2008
Category:	Principal judgment
Parties:	John McMahon (Applicant) Christopher Slack-Smith (First Respondent) Fiona Slack-Smith (Second Respondent)
Representation:	J McMahon, (Self-represented) (Applicant) C Slack-Smith (Self-represented) (First Respondent) F Slack-Smith (Self-represented) (Second Respondent)
File Number(s):	2022/161137
Publication restriction:	No