Pisula v Luttrell

[2011] NSWLEC 1356

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pisula & anor v Luttrell [2011] NSWLEC 1356

Hearing dates:

24 November 2011

Decision date:

13 December 2011

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)Within 30 days of the dates of these orders, the Applicants are to obtain and provide to the Respondent three quotes for repairing the damaged section of the retaining wall, which is approximately 10 metres in length, to a similar standard and using similar material as the existing retaining wall.

(2)The Respondent has 7 days from receipt of quotes from the Applicant to respond to the Applicant with their choice of contractor otherwise the Applicant chooses the contractor.

(3)The repair works to the retaining wall are to be completed within 3 months of the date of these orders otherwise order 4 lapses.

(4)The Respondent is to reimburse the Applicants 30% of the cost of the works in order 1 within 21 days of the receipt of a tax invoice for the completed works.

Catchwords:

TREES [NEIGHBOURS]; damage to property; tree already removed; compensation ordered.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006
Interpretation Act 1987

Cases Cited:

Osborne v Hook [2008] NSWLEC 1231
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Timmins v Park [2011] NSWLEC 1308
Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) November 2009

Category:

Principal judgment

Parties:

L Pisula & G Pisula (Applicants)

G Luttrell (Respondent)

Representation:

John Kavanagh (Applicants)
J A Kavanagh & Co

Patrick Riordan (Respondent)
Thompson Cooper Lawyers

File Number(s):

20590 of 2011

JUDGMENT

1. ACTING COMMISSIONER: Two Strelitzia nicolai (Giant White Bird of Paradise) plants grew on the Respondent's property in Woronora Heights adjacent to the common boundary with the Applicants' property. Although the plants have been removed, the Applicants claim that the plants caused damage to a retaining wall on their land and, furthermore, that parts of the plants remaining in the ground may cause damage to their retaining wall in future.

1. The Applicants make this application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). They seek the following orders:

(1)   That the Respondent remedy, restrain or prevent further damage to property on land owned by the Applicants by trees situated on land owned by the Respondent.

(2)   That the Respondent pay compensation to the Applicants for damage to the Applicants' property.

(3)   That the damage payable by the Respondent, for removal and replacement of a brick retaining wall, replacement of soil and plants and hire of Acrow props, be a sum of $6,185.30.

(4)   That the Respondent pay the Applicants' costs of these proceedings.

1. The Respondent's position is that he has always taken action when informed of damage and is therefore not liable for the damage.

History

1. As the Court needs to consider various matters outlined in s 12 of the Act, which will be discussed later, it is relevant…