Ahern v Loxton

[2016] NSWLEC 1380

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ahern v Loxton & anor [2016] NSWLEC 1380
Hearing dates:	30 August 2016
Date of orders:	30 August 2016
Decision date:	30 August 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; cause of damage not demonstrated.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson and anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Susan Ahern (Applicant) Peter Loxton (First Respondent) Janet Loxton (Second Respondent)
Representation:	Solicitors: Kerry Williams, A C Knibb Kaine & Associates (Applicant) Graham Gorrie, GRG Lawyers (Respondents)
File Number(s):	165774 of 2016

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. Ms Ahern (‘the applicant’) has lived at her Wahroonga property since its construction in 1965. Over the last few years she has noticed damage to parts of her dwelling and its surrounds, due, she says, to two neighbouring trees.

2. Ms Ahern gave uncontested evidence that a large limb fell from one of the trees in 2011, causing significant damage to her dwelling. Ms Ahern wants the two neighbouring trees, a Redwood and a Tallowwood, removed. She attended mediation with her neighbours, Mr and Mrs Loxton (‘the respondents’), in July 2015. The Loxtons have owned the neighbouring property since early 2014. Ms Ahern had also tried to reach an agreement regarding the trees with the previous owner of the Loxtons’ property.

3. At mediation an agreement was reached, with an undertaking from the Loxtons that they would remove both trees once permission was gained from Ku-ring-gai Council. Oddly, a subsequent application for tree works at their property did not seek orders for removing the trees, but mentioned Ms Ahern's concerns. Council granted a permit to remove other trees on the property, and to prune these two trees. Pruning works have been carried out.

4. Pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), Ms Ahern applied to the Court seeking orders for the Loxtons to remove both trees. The Court’s jurisdiction does not extend to enforcing the agreement reached by the parties at mediation. Rather, the Court must determine if the trees have caused damage, are causing damage, or are likely in the near future to cause damage, to the applicant’s property. The Court must also consider a range of relevant matters before making appropriate orders.

Damage

5. At the onsite hearing, Ms Ahern pointed out or described the following damage:

• Lifting of a paving slab at the rear of the dwelling, resulting in an uneven surface and the slab being pushed away from the brick wall of the dwelling.

• Damage to bricks at the rear of the dwelling.

• Roots entering and damaging a drainage inlet and pipes at the rear of the dwelling.

All of the above is alleged to be caused by roots of the Redwood. Damage alleged to be caused by the Tallowwood includes:

• Roots growing…