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West Australian
a day ago
- General
- West Australian
NSW Land and Environment Court rules on Battiato v Clifton tree dispute
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.
The Advertiser
15-05-2025
- Business
- The Advertiser
Councillors reject 584-dwelling development due to flooding and koala fears
Port Stephens councillors have unanimously rejected a rezoning proposal for a 584-home development at Anna Bay. The proposal faced significant community backlash, with residents pointing out the 125-hectare site at 283 Gan Gan Road had been identified as a floodplain and core koala habitat. On Tuesday night, councillors were united in their condemnation of the proposal and supported staff's recommendation to reject the application. Deputy mayor Jason Wells said the site had been identified in multiple strategic documents as unsuitable for development. "Those documents aren't just red tape, they're not to gather dust on a bookshelf, they exist for a reason," Cr Wells said. "They reflect years of research, consultation and expert planning to guide responsible growth. We can't start ignoring those frameworks completely." Cr Paul Le Mottee said there was a ministerial directive ordering councils not to rezone flood-prone land for residential use. "It's black and white - it's got no definition about if it's just a little bit of flooding, a lot of flooding or you're just going to fill it," he said. "So as far as I'm concerned, forget all the other issues about whether you can build fancy big drains or rehabilitate [the environment] to get past everything else. That ministerial directive is a complete and utter roadblock." Developer AB Rise proposed to import one to four metres, or 1000 truckloads, of fill to raise land to lift the land above the flood level Mecone director Chris Shannon helped prepare the proposal and spoke on behalf of the developers. He said flooding concerns would be addressed by raising the land and reconstructing the Anna Bay main drain, while a 33-hectare offset would alleviate environmental issues "We're willing to work with council officers to provide the additional information," Mr Shannon said. "If there are concerns with the proposal we're willing to make amendments as needed, but we haven't been given that opportunity." The last time the council requested more information from AB Rise during the assessment of stage one - the adjacent 34-lot development on Gan Gan Road - the company took the matter to the NSW Land and Environment Court. Community futures director Stephen Peart indicated further information would not change the council's opinion. "Council has undertaken flood studies around Anna Bay catchment for many, many years, we understand the site is a significant flood risk and the flooding characteristics on that site haven't changed," Mr Peart said. "We're not in the business of asking applicants to provide additional technical studies and spend more money on consultants when we don't believe there is strong strategic merit for an application." Cr Peter Francis said the proposed in-filling - estimated to be the equivalent of 428 Olympic-sized swimming pools - would displace a significant amount of water. Michael Atkinson neighbours the proposal and raised concerns about the impact of flooding, which was already threatening surrounding properties, some of which were just 60 centimetres above sea level. "A resident in my street had their flood insurance go up to $16,000 a year, and my neighbour just stopped paying the flood portion of his insurance because it's too expensive," he told the councillors. Cr Roz Armstrong labelled the development "highly opportunistic". "They thought because of the current need for housing in the area they could run roughshod over established processes," she said. Port Stephens councillors have unanimously rejected a rezoning proposal for a 584-home development at Anna Bay. The proposal faced significant community backlash, with residents pointing out the 125-hectare site at 283 Gan Gan Road had been identified as a floodplain and core koala habitat. On Tuesday night, councillors were united in their condemnation of the proposal and supported staff's recommendation to reject the application. Deputy mayor Jason Wells said the site had been identified in multiple strategic documents as unsuitable for development. "Those documents aren't just red tape, they're not to gather dust on a bookshelf, they exist for a reason," Cr Wells said. "They reflect years of research, consultation and expert planning to guide responsible growth. We can't start ignoring those frameworks completely." Cr Paul Le Mottee said there was a ministerial directive ordering councils not to rezone flood-prone land for residential use. "It's black and white - it's got no definition about if it's just a little bit of flooding, a lot of flooding or you're just going to fill it," he said. "So as far as I'm concerned, forget all the other issues about whether you can build fancy big drains or rehabilitate [the environment] to get past everything else. That ministerial directive is a complete and utter roadblock." Developer AB Rise proposed to import one to four metres, or 1000 truckloads, of fill to raise land to lift the land above the flood level Mecone director Chris Shannon helped prepare the proposal and spoke on behalf of the developers. He said flooding concerns would be addressed by raising the land and reconstructing the Anna Bay main drain, while a 33-hectare offset would alleviate environmental issues "We're willing to work with council officers to provide the additional information," Mr Shannon said. "If there are concerns with the proposal we're willing to make amendments as needed, but we haven't been given that opportunity." The last time the council requested more information from AB Rise during the assessment of stage one - the adjacent 34-lot development on Gan Gan Road - the company took the matter to the NSW Land and Environment Court. Community futures director Stephen Peart indicated further information would not change the council's opinion. "Council has undertaken flood studies around Anna Bay catchment for many, many years, we understand the site is a significant flood risk and the flooding characteristics on that site haven't changed," Mr Peart said. "We're not in the business of asking applicants to provide additional technical studies and spend more money on consultants when we don't believe there is strong strategic merit for an application." Cr Peter Francis said the proposed in-filling - estimated to be the equivalent of 428 Olympic-sized swimming pools - would displace a significant amount of water. Michael Atkinson neighbours the proposal and raised concerns about the impact of flooding, which was already threatening surrounding properties, some of which were just 60 centimetres above sea level. "A resident in my street had their flood insurance go up to $16,000 a year, and my neighbour just stopped paying the flood portion of his insurance because it's too expensive," he told the councillors. Cr Roz Armstrong labelled the development "highly opportunistic". "They thought because of the current need for housing in the area they could run roughshod over established processes," she said. Port Stephens councillors have unanimously rejected a rezoning proposal for a 584-home development at Anna Bay. The proposal faced significant community backlash, with residents pointing out the 125-hectare site at 283 Gan Gan Road had been identified as a floodplain and core koala habitat. On Tuesday night, councillors were united in their condemnation of the proposal and supported staff's recommendation to reject the application. Deputy mayor Jason Wells said the site had been identified in multiple strategic documents as unsuitable for development. "Those documents aren't just red tape, they're not to gather dust on a bookshelf, they exist for a reason," Cr Wells said. "They reflect years of research, consultation and expert planning to guide responsible growth. We can't start ignoring those frameworks completely." Cr Paul Le Mottee said there was a ministerial directive ordering councils not to rezone flood-prone land for residential use. "It's black and white - it's got no definition about if it's just a little bit of flooding, a lot of flooding or you're just going to fill it," he said. "So as far as I'm concerned, forget all the other issues about whether you can build fancy big drains or rehabilitate [the environment] to get past everything else. That ministerial directive is a complete and utter roadblock." Developer AB Rise proposed to import one to four metres, or 1000 truckloads, of fill to raise land to lift the land above the flood level Mecone director Chris Shannon helped prepare the proposal and spoke on behalf of the developers. He said flooding concerns would be addressed by raising the land and reconstructing the Anna Bay main drain, while a 33-hectare offset would alleviate environmental issues "We're willing to work with council officers to provide the additional information," Mr Shannon said. "If there are concerns with the proposal we're willing to make amendments as needed, but we haven't been given that opportunity." The last time the council requested more information from AB Rise during the assessment of stage one - the adjacent 34-lot development on Gan Gan Road - the company took the matter to the NSW Land and Environment Court. Community futures director Stephen Peart indicated further information would not change the council's opinion. "Council has undertaken flood studies around Anna Bay catchment for many, many years, we understand the site is a significant flood risk and the flooding characteristics on that site haven't changed," Mr Peart said. "We're not in the business of asking applicants to provide additional technical studies and spend more money on consultants when we don't believe there is strong strategic merit for an application." Cr Peter Francis said the proposed in-filling - estimated to be the equivalent of 428 Olympic-sized swimming pools - would displace a significant amount of water. Michael Atkinson neighbours the proposal and raised concerns about the impact of flooding, which was already threatening surrounding properties, some of which were just 60 centimetres above sea level. "A resident in my street had their flood insurance go up to $16,000 a year, and my neighbour just stopped paying the flood portion of his insurance because it's too expensive," he told the councillors. Cr Roz Armstrong labelled the development "highly opportunistic". "They thought because of the current need for housing in the area they could run roughshod over established processes," she said. Port Stephens councillors have unanimously rejected a rezoning proposal for a 584-home development at Anna Bay. The proposal faced significant community backlash, with residents pointing out the 125-hectare site at 283 Gan Gan Road had been identified as a floodplain and core koala habitat. On Tuesday night, councillors were united in their condemnation of the proposal and supported staff's recommendation to reject the application. Deputy mayor Jason Wells said the site had been identified in multiple strategic documents as unsuitable for development. "Those documents aren't just red tape, they're not to gather dust on a bookshelf, they exist for a reason," Cr Wells said. "They reflect years of research, consultation and expert planning to guide responsible growth. We can't start ignoring those frameworks completely." Cr Paul Le Mottee said there was a ministerial directive ordering councils not to rezone flood-prone land for residential use. "It's black and white - it's got no definition about if it's just a little bit of flooding, a lot of flooding or you're just going to fill it," he said. "So as far as I'm concerned, forget all the other issues about whether you can build fancy big drains or rehabilitate [the environment] to get past everything else. That ministerial directive is a complete and utter roadblock." Developer AB Rise proposed to import one to four metres, or 1000 truckloads, of fill to raise land to lift the land above the flood level Mecone director Chris Shannon helped prepare the proposal and spoke on behalf of the developers. He said flooding concerns would be addressed by raising the land and reconstructing the Anna Bay main drain, while a 33-hectare offset would alleviate environmental issues "We're willing to work with council officers to provide the additional information," Mr Shannon said. "If there are concerns with the proposal we're willing to make amendments as needed, but we haven't been given that opportunity." The last time the council requested more information from AB Rise during the assessment of stage one - the adjacent 34-lot development on Gan Gan Road - the company took the matter to the NSW Land and Environment Court. Community futures director Stephen Peart indicated further information would not change the council's opinion. "Council has undertaken flood studies around Anna Bay catchment for many, many years, we understand the site is a significant flood risk and the flooding characteristics on that site haven't changed," Mr Peart said. "We're not in the business of asking applicants to provide additional technical studies and spend more money on consultants when we don't believe there is strong strategic merit for an application." Cr Peter Francis said the proposed in-filling - estimated to be the equivalent of 428 Olympic-sized swimming pools - would displace a significant amount of water. Michael Atkinson neighbours the proposal and raised concerns about the impact of flooding, which was already threatening surrounding properties, some of which were just 60 centimetres above sea level. "A resident in my street had their flood insurance go up to $16,000 a year, and my neighbour just stopped paying the flood portion of his insurance because it's too expensive," he told the councillors. Cr Roz Armstrong labelled the development "highly opportunistic". "They thought because of the current need for housing in the area they could run roughshod over established processes," she said.
