Piper v Neal (No.2)

[2014] NSWLEC 1038

Land and Environment Court

New South Wales

Medium Neutral Citation:

Piper v Neal (No.2) [2014] NSWLEC 1038

Hearing dates:

10 February 2014

Decision date:

10 February 2014

Jurisdiction:

Class 2

Before:

Moore SC
Fakes C

Decision:

(1)The application is dismissed.

(2)The exhibits, other than Exhibits A and B, are returned.

Catchwords:

TREES [NEIGHBOURS] Damage; probable timeframe; causation

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Hinde v Anderson & Anor (2009) NSWLEC 1148
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280

Category:

Principal judgment

Parties:

J Piper (Applicant)
M Neal (Respondent)
Botany Bay City Council (Intervenor)

Representation:

Mr M Steinfeld, solicitor (Applicant)
Steinfeld & Associates

Mr L Chan, agent (Respondent)

Mr S Shneider, solicitor (Intervenor)
Houston Dearn O'Connor

File Number(s):

20712 of 2013

Judgment

1. COMMISSIONERS: A Liquidambar between about 12m and 14 m high is located in the rear yard of a residence in Pagewood. There has been past pruning of the tree on both its eastern and northern sides, but we are satisfied that, in these proceedings, nothing arises from that past pruning, despite the fact that some of it might be regarded as having been amateurish and not in accordance with the relevant Australian Standard.

1. The tree stands some 600 mm or so to the west of a retaining wall that is located on the applicant's property and which runs the full length of the boundary between the applicant's property and the property upon which the tree is located.

1. The height of the earth retained by the retaining wall tapers from approximately 1.2 m in height toward the northern end at the limit of the section of the wall that is the subject of the application, through to being approximately equal to the ground level on the neighbouring property at the southern end of the wall.

1. The application, as originally proposed, sought orders of the Court that the respondent be required to remove the tree at her expense; that the cost of the replacement of the relevant section of the retaining wall at a cost of some $26,000 be met by the respondent; and that a section of fence, what might only be regarded as a metaphysical fence (as the fence itself has not in fact been present for some ten years), should be reinstated with the cost of that fence being shared between the applicant and the respondent.

1. The final application, arising after a number of matters were raised by us with Mr Steinfeld, solicitor for the applicant, during the course of the proceedings, was that the tree be removed at the respondent's expense: that the relevant section of the retaining wall be replaced with 60% of the cost of that to be met by the respondent: that the work to reinstate the retaining wall be undertaken by the applicant; and that access be permitted to the respondent's property for the purposes of such reconstruction.

1. The claim that concerned the metaphysical fence no longer present was withdrawn.

1. At the commencement of the proceedings,…