Gardiner v Bisley [2021] NSWLEC 1176

Gardiner v Bisley [2021] NSWLEC 1176

The Court was satisfied on the balance of probabilities, though barely, that the Blackbutt was one of various causes of past or current retaining wall damage, engaging s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. However, the retaining wall was old, likely inadequately constructed, deficient in drainage and expansion joints, and approaching or beyond its useful service life, while the Blackbutt long predated the wall and had significant amenity and biodiversity value. Wall replacement at the respondent's cost was therefore refused, and more limited wall repair and drainage orders were made. The risk of injury from the Blackbutt could be reduced to an acceptable level by...

Jurisdiction
Australia
Judgment Date
13 April 2021
Procedural Posture
Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders
Outcome
Application allowed in part; removal of all trees and replacement of the retaining wall refused, but orders made for wall repair, drainage, aerial inspection, selective pruning, removal of specified trees, access and cost sharing.
Legal Topics
['damage to Property From Trees' 'risk of Injury From Trees' 'retaining Wall Damage' 'tree Pruning and Removal' 'falling Leaves, Sticks and Tree Debris' 'neighbour Dispute']
['environmental and Planning Law' 'trees Disputes Between Neighbours' 'property Law'] ['damage to Property From Trees' 'risk of Injury From Trees' 'retaining Wall Damage' 'tree Pruning and Removal' 'falling Leaves, Sticks and Tree Debris' 'neighbour Dispute']

Case Brief

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Procedural Posture

Class 1 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders

Legal Issues

  1. 1 ["Whether trees on the respondent's land caused, were causing, or were likely in the near future to cause damage to the applicant's retaining wall or property." 'Whether the Blackbutt and other trees were likely to cause injury to any person.' "Whether falling leaves, sticks and other tree debris onto the applicant's land invoked the Court's jurisdiction under the Trees (Disputes Between Neighbours) Act 2006." 'What orders, including pruning, removal, drainage, wall repair and cost allocation, should be made.']

Ratio Decidendi

The Court was satisfied on the balance of probabilities, though barely, that the Blackbutt was one of various causes of past or current retaining wall damage, engaging s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. However, the retaining wall was old, likely inadequately constructed, deficient in drainage and expansion joints, and approaching or beyond its useful service life, while the Blackbutt long predated the wall and had significant amenity and biodiversity value. Wall replacement at the respondent's cost was therefore refused, and more limited wall repair and drainage orders were made. The risk of injury from the Blackbutt could be reduced to an acceptable level by...

Court Disposition

Application allowed in part; removal of all trees and replacement of the retaining wall refused, but orders made for wall repair, drainage, aerial inspection, selective pruning, removal of specified trees, access and cost sharing.

Orders

  • ["Applicant to contract and pay for crack stitching of identified masonry cracks in the retaining wall using the 'HeliFix' system by a licensed builder, and repair and make safe the pool gate; works to be completed within 120 days, with respondent to reimburse 40% within 14 days of receipt of a paid invoice."...