Gowland v Ho [2021] NSWLEC 1534

Gowland v Ho [2021] NSWLEC 1534

Trees T1, T3 and T4 have caused minor damage to the retaining wall RW1, but the overwhelming factor necessitating wall replacement is structural inadequacy unrelated to the trees. The Court has jurisdiction only to order remedies for the localised damage caused by these trees, not to order replacement (or contribution to replacement) of RW1 as a whole. Orders for removing T1, T3 and T4 are appropriate, but costs for wall works are not recoverable from the respondents under the Trees Act in the circumstances.

Parties
First Applicant: Judith Gowland; Second Applicant: Jonathan Gowland; First Respondent: Jui Piao Ho; Second Respondent: Wing Yee Iris Lui
Jurisdiction
Australia
Judgment Date
15 September 2021
Procedural Posture
Trees (disputes Between Neighbours) – Pt 2 Application / Principal Judgment
Outcome
Partially granted
Legal Topics
Trees (disputes Between Neighbours), Damage to Property, Retaining Walls, Remedies
Environmental Law Property Law Trees (disputes Between Neighbours) Damage to Property Retaining Walls Remedies

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Parties

Judith Gowland

First Applicant

Jonathan Gowland

Second Applicant

Jui Piao Ho

First Respondent

Wing Yee Iris Lui

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) – Pt 2 Application / Principal Judgment

Legal Issues

  1. 1 Whether trees on the respondents' land have caused, are causing, or are likely to cause damage to the applicants' property (retaining wall)
  2. 2 Who owns the retaining wall and who is responsible for its maintenance or repair
  3. 3 Whether the Trees (Disputes Between Neighbours) Act 2006 provides jurisdiction to order remedy or removal

Ratio Decidendi

Trees T1, T3 and T4 have caused minor damage to the retaining wall RW1, but the overwhelming factor necessitating wall replacement is structural inadequacy unrelated to the trees. The Court has jurisdiction only to order remedies for the localised damage caused by these trees, not to order replacement (or contribution to replacement) of RW1 as a whole. Orders for removing T1, T3 and T4 are appropriate, but costs for wall works are not recoverable from the respondents under the Trees Act in the circumstances.

Court Disposition

Partially granted

Orders

  • The application to remove T1, T3 and T4 is granted; the remainder of the application is refused.
  • Within 30 days, the respondents are to engage and pay for a suitably qualified arborist to remove T1 (Black Bean), T3 (camellia) and T4 (camellia) in accordance with the 2016 Safe Work Australia Guide.