Barwick v Tulloh [2019] NSWLEC 1650

Barwick v Tulloh [2019] NSWLEC 1650

The applicant had made reasonable effort to reach agreement, and the cypress tree on the respondents' property was a significant factor in the crack in the boundary retaining wall, which was property of both the applicant and the respondents. The tree was in poor condition, unsuitable for retention, and could contribute to further damage, so removal at the respondents' cost was appropriate. For the wall, the evidence did not establish structural instability requiring rebuilding beyond the cracked part; the Court preferred the minimal repairs recommended by D M Schaefer, declined to order removal of the rootball, and ordered the parties to share the repair cost because the wall was on the...

Jurisdiction
Australia
Judgment Date
06 December 2019
Procedural Posture
Class 2 Application Under S 7 (part 2) of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Orders After Onsite Hearing and Further Hearing
Outcome
Final orders made for the parties to obtain quotes and arrange repairs to the boundary retaining wall, with the respondents to pay 50% of the quoted amount after receipt of a paid invoice; earlier interlocutory orders required the respondents to remove the tree.
Legal Topics
['damage to Boundary Retaining Wall' 'tree Removal' 'ownership of Retaining Wall' 'repair Works' 'allocation of Repair Costs']
['trees Disputes Between Neighbours' 'property Law' 'environmental and Planning Law'] ['damage to Boundary Retaining Wall' 'tree Removal' 'ownership of Retaining Wall' 'repair Works' 'allocation of Repair Costs']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 (part 2) of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Orders After Onsite Hearing and Further Hearing

Legal Issues

  1. 1 ['Whether the applicant made reasonable effort to reach agreement with the respondents before orders could be made.' "Whether the respondents' tree caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the tree should be removed.' 'What repairs were required to the boundary retaining wall.' 'Who should pay for removal of the tree and repairs to the retaining wall.']

Ratio Decidendi

The applicant had made reasonable effort to reach agreement, and the cypress tree on the respondents' property was a significant factor in the crack in the boundary retaining wall, which was property of both the applicant and the respondents. The tree was in poor condition, unsuitable for retention, and could contribute to further damage, so removal at the respondents' cost was appropriate. For the wall, the evidence did not establish structural instability requiring rebuilding beyond the cracked part; the Court preferred the minimal repairs recommended by D M Schaefer, declined to order removal of the rootball, and ordered the parties to share the repair cost because the wall was on the...

Court Disposition

Final orders made for the parties to obtain quotes and arrange repairs to the boundary retaining wall, with the respondents to pay 50% of the quoted amount after receipt of a paid invoice; earlier interlocutory orders required the respondents to remove the tree.

Orders

  • ['Within 30 days of the date of these orders, each party is to obtain two quotes from suitably experienced builders or contractors with all appropriate insurances to carry out repairs to the boundary retaining wall according to the recommendations in the report of D M Schaefer of Taylor Consulting dated 4 December...