White v Blacket - [2018] NSWLEC 1386

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: White v Blacket [2018] NSWLEC 1386
Hearing dates: 15 June 2018
Date of orders: 20 July 2018
Decision date: 20 July 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The orders of the Court are:
(1)   Within 12 months of the date of these orders, the applicants are to engage an engineer to draw and specify a replacement wall, and engage and pay for a contractor to construct the wall.
(2)   Access is to be from within the applicants’ property. Excavation into the respondents’ property is to be minimised; damage to the respondents’ vegetation is to be avoided, or minimised where it cannot be avoided.
(3)   The applicants are to give the respondents 14 days’ notice of the works.
(4)   The respondents are to allow access to their property for excavation and drainage installation along the boundary, but are not required to give access for materials to be stored or transported from the street.
(5)   If the extent of excavation for the wall and drainage requires removal of the respondents’ camellias, the applicants are responsible for lifting, and later replanting, the camellias. In this case, the camellias are to be stored on the respondents’ land where the respondents direct.
(6)   The respondents are responsible for maintaining (watering etc.) the camellias during period of the works.
(7)   If works in order (1) are not completed within 12 months, all other orders lapse.
(8)   The exhibits are returned.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by tree – tree has been removed – construction of wall – whether respondents could have prevented damage – whether respondents should contribute to repair costs – whether access for works should be through the respondents’ property
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513
Sait v Mason [2007] NSWLEC 293
Category: Principal judgment
Parties: Alan White (First Applicant)
Kerry White (Second Applicant)
Paul Blacket (First Respondent)
Christine Doemling (Second Respondent)
Representation: Solicitors:
E Steer, SBA Law (Applicant)
P Blacket, litigant in person (Respondent)

File Number(s): 2018/49403
Publication restriction: Nil

Judgment

Background

COMMISSIONER: When Alan and Kerry White (the applicants) constructed their dwelling and pool on their Birchgrove property approximately 18 years ago, a brick wall along the boundary they share with Paul Blacket and Christine Doemling (the respondents) collapsed. Their contractor constructed a new concrete block wall. This wall rises to a height of approximately 2.3 metres above their pool deck, retaining approximately 0.7–0.9 metres of ground on the respondents’ land. At that time, a Spotted Gum (the tree) grew in the respondents’ garden, close to the boundary wall. It was approximately seven metres in height.
Cracks in the wall were first noticed by the applicants in late 2014, at which time the tree was approximately 20 metres tall. The applicants attribute the damage to the tree. The applicants informed the respondents of the damage in early 2015. The respondents removed…

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 White v Blacket

Details

AGLC: White v Blacket [2018] NSWLEC 1386
Case: [2018] NSWLEC 1386
Decision Date: 20 July 2018

CaseChat Overview and Summary

White brought an application against Blacket for an order allowing them to replace a wall that had been removed, along with installing drainage works. The wall was removed by White to allow for the construction of a carport. The wall had been party wall, shared with Blacket. Blacket objected to the replacement of the wall and drainage works, and brought an application to prevent White from undertaking the works. The parties appeared before the Court. The legal issues were whether the applicants were entitled to replace the wall and install drainage works, and if so, on what terms. The Court found that the applicants were entitled to undertake the works, but that they were to be conducted in a particular way. The Court was satisfied that the applicants needed to undertake the works to address drainage problems, and that they needed to replace the wall to provide structural support for the carport. The Court found that the works could be conducted in a manner that did not unduly impact upon Blacket’s property. The orders made by the Court were that the applicants were to undertake the works in a particular way, and that they were to indemnify Blacket in the event that the works caused damage to Blacket’s property.

Orders

Orders of the court

The orders of the Court are:

(1) Within 12 months of the date of these orders, the applicants are to engage an engineer to draw and specify a replacement wall, and engage and pay for a contractor to construct the wall.

(2) Access is to be from within the applicants’ property. Excavation into the respondents’ property is to be minimised; damage to the respondents’ vegetation is to be avoided, or minimised where it cannot be avoided.

(3) The applicants are to give the respondents 14 days’ notice of the works.

(4) The respondents are to allow access to their property for excavation and drainage installation along the boundary, but are not required to give access for materials to be stored or transported from the street.

(5) If the extent of excavation for the wall and drainage requires removal of the respondents’ camellias, the applicants are responsible for lifting, and later replanting, the camellias. In this case, the camellias are to be stored on the respondents’ land where the respondents direct.

(6) The respondents are responsible for maintaining (watering etc.) the camellias during period of the works.

(7) If works in order (1) are not completed within 12 months, all other orders lapse.

(8) The exhibits are returned.

Background

Background to the litigation

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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:	White v Blacket [2018] NSWLEC 1386
Hearing dates:	15 June 2018
Date of orders:	20 July 2018
Decision date:	20 July 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The orders of the Court are: (1) Within 12 months of the date of these orders, the applicants are to engage an engineer to draw and specify a replacement wall, and engage and pay for a contractor to construct the wall. (2) Access is to be from within the applicants’ property. Excavation into the respondents’ property is to be minimised; damage to the respondents’ vegetation is to be avoided, or minimised where it cannot be avoided. (3) The applicants are to give the respondents 14 days’ notice of the works. (4) The respondents are to allow access to their property for excavation and drainage installation along the boundary, but are not required to give access for materials to be stored or transported from the street. (5) If the extent of excavation for the wall and drainage requires removal of the respondents’ camellias, the applicants are responsible for lifting, and later replanting, the camellias. In this case, the camellias are to be stored on the respondents’ land where the respondents direct. (6) The respondents are responsible for maintaining (watering etc.) the camellias during period of the works. (7) If works in order (1) are not completed within 12 months, all other orders lapse. (8) The exhibits are returned.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by tree – tree has been removed – construction of wall – whether respondents could have prevented damage – whether respondents should contribute to repair costs – whether access for works should be through the respondents’ property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 Sait v Mason [2007] NSWLEC 293
Category:	Principal judgment
Parties:	Alan White (First Applicant) Kerry White (Second Applicant) Paul Blacket (First Respondent) Christine Doemling (Second Respondent)
Representation:	Solicitors: E Steer, SBA Law (Applicant) P Blacket, litigant in person (Respondent)
File Number(s):	2018/49403
Publication restriction:	Nil