Bertalli v Hutton [2020] NSWLEC 1060

Bertalli v Hutton [2020] NSWLEC 1060

The applicant had made reasonable efforts to reach agreement and the Jacaranda had contributed to damage to the applicant's retaining wall, enlivening jurisdiction under the Trees Act. However, removal was refused because the tree was healthy, had significant private and public amenity value, and could be retained while a replacement retaining wall was constructed with appropriate specifications and setback. The respondents were not ordered to contribute to the retaining wall because the wall was on the applicant's property, its inadequate design, construction and age were significant contributors to the damage, an opportunity to upgrade it during redevelopment was not taken, and the...

Jurisdiction
Australia
Judgment Date
09 January 2020
Procedural Posture
Class 2 Trees Dispute Application Under S 7 of the Trees (disputes Between Neighbours Act) 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Application granted in part; application to remove the Jacaranda tree refused.
Legal Topics
['damage Caused by Tree Roots' 'retaining Wall Damage' 'removal of Jacaranda Tree' 'replacement of Dividing Fence' 'apportionment of Costs' 'amenity Value of Tree']
['trees Disputes Between Neighbours' 'property' 'dividing Fences' 'environmental Planning'] ['damage Caused by Tree Roots' 'retaining Wall Damage' 'removal of Jacaranda Tree' 'replacement of Dividing Fence' 'apportionment of Costs' 'amenity Value of Tree']

Case Brief

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Procedural Posture

Class 2 Trees Dispute Application Under S 7 of the Trees (disputes Between Neighbours Act) 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicant made reasonable effort to reach agreement with the respondents under s 10(1)(a) of the Trees Act.' "Whether the Jacaranda tree caused, is causing, or is likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees Act." 'Whether the Jacaranda tree should be removed or retained while works are undertaken to remedy and prevent damage.' 'Who should carry out and pay for demolition and reconstruction of the retaining wall and replacement of the dividing fence.']

Ratio Decidendi

The applicant had made reasonable efforts to reach agreement and the Jacaranda had contributed to damage to the applicant's retaining wall, enlivening jurisdiction under the Trees Act. However, removal was refused because the tree was healthy, had significant private and public amenity value, and could be retained while a replacement retaining wall was constructed with appropriate specifications and setback. The respondents were not ordered to contribute to the retaining wall because the wall was on the applicant's property, its inadequate design, construction and age were significant contributors to the damage, an opportunity to upgrade it during redevelopment was not taken, and the...

Court Disposition

Application granted in part; application to remove the Jacaranda tree refused.

Orders

  • ['The application is granted in part.' 'The application to remove the Jacaranda tree is refused.' 'By 31 May 2020, the applicant is to engage and pay for a suitably experienced contractor, with all appropriate licences and insurances, to demolish the existing retaining wall adjacent to the common boundary shared...