NSW Land and Environment Court rules on Battiato v Clifton tree dispute

West Australian

a day ago

A long-running tussle between neighbours over a pine tree and a crumbling retaining wall has finally ended, with a court ordering both parties to share costs for the fix-up.
The brouhaha between Vince and Natalie Battiato of 20 Kanangra Ave and Faye Clifton of 22 Kanangra Ave in the coastal NSW town of Corlette escalated into a legal stoush because of the dilapidated wall that splits the two properties.
The wall needed to be fixed and the neighbours could not agree on who should pay.
The Battiatos contended that the roots of an old pine tree, which has since been removed, on Ms Clifton's property was the main contributor to the damage to the wall.
But Ms Clifton shot back and argued the age of the wall was the central factor underpinning its dilapidation.
In their application to the NSW Land and Environment Court, the Battiatos said Ms Clifton should remove all remaining trees on her property to facilitate the reconstruction of the wall and then pay for the fix-up.
They also wanted her to bear all court costs.
In her submission, Ms Clifton pushed for a 'just and fair outcome to a lengthy ongoing dispute', court documents show.
She asked for costs to be shared between the parties for the reconstruction job.
Acting Commissioner Peter Nichols AC, settling the dispute, visited the site and concluded age was the primary cause of the wall's dilapidation.
But he added the tree had also likely caused some damage.
'The tree has been shown to have exacerbated damage to the section of the retaining wall, thus engaging the court's jurisdiction, however orders made for any compensation are a matter of discretion,' he said.
'Given the nature of the retaining wall, it appears that, in the main, the dilapidation was a function of the age and inappropriate design and construction materials of the retaining wall.'
In his decision, handed down this week, Dr Nichols upheld the application from the Battiatos but only 'in part'.
He ordered Ms Clifton to remove seven trees from her property, including tree stumps, trunks and roots 'with a diameter of greater than 100mm located within 200mm of the shared property boundary between 20 and 22 Kanangra Ave'.
The trees are camellia, lemon and pine trees.
But he ordered for the wall reconstruction costs to be split '50-50'.
'Within 365 days of the date of these orders the applicants (Battiatos) and respondent (Ms Clifton) are to arrange and pay for the design and construction of the replacement retaining wall, including obtaining all necessary approvals from Port Stephens Council … sharing the costs 50-50,' he said.
The neighbours were ordered to swap quotes beforehand to find the cheapest option from 'suitably qualified and experienced building contractors'.
Further, Dr Nichols ordered the parties to construct a new boundary fence on the top of the new retaining wall on the shared property boundary, splitting the costs 50-50.
Legislation within the Trees (Disputes Between Neighbours Act) from 2006 and the Dividing Fences Act from 1991 covered the dispute.
Port Stephens Council sits north of Newcastle in NSW's Hunter Valley region.
Corlette lies next to famous Nelson Bay, a popular tourist destination in the region.