Briggs v Jones

[2015] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation:	Briggs v Jones & anor [2015] NSWLEC 1248
Hearing dates:	6 July 2015
Date of orders:	06 July 2015
Decision date:	06 July 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; orders for compensation
Catchwords:	TREES [NEIGHBOURS]; Damage to property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ding & Anor v Phillips [2008] NSWLEC 1268 Harvey v Harding [2007] NSWLEC 489 Osborne v Hook [2008] NSWLEC 1231 Payn v Allen [2010] NSWLEC 1315
Category:	Principal judgment
Parties:	Mr C Briggs (Applicant) Mr G and Mrs K Jones (Respondents)
Representation:	Applicants: Mr C Briggs (Litigant in person) Respondents: Mr G and Mrs K Jones (Litigants in person)
File Number(s):	20136 of 2015

Judgment

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

1. COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2. The applicant, who owns a property in Ambarvale, contends that a Eucalypt growing on an adjoining property has caused damage to his property and could cause injury to his family. The damage alleged to have been caused is the blocking of the sewer and damage to a fence. The concerns about injury relate to falling branches or failure of the entire tree.

3. The applicant seeks orders for the removal of the tree and the grinding of its roots.

4. While not formally seeking orders for compensation, the claim form indicates that compensation of $286.00 is sought. This comprises reimbursement for two plumbing invoices for the clearing of the sewer of $143.00 each. The claim form also indicates that rectification of the sewer is sought. Quotes included in the supplementary information filed with the court estimate a potential cost of over $7000.00 for works including: investigation by CCTV of the location of the problem, removal of overlying concrete and repairs to the sewer, and replacement of the concrete.

5. In March 2015, the respondents removed the tree; the stump was ground and the remains poisoned.

6. Section 4(4) of the Act enables Part 2 to be applied to trees that have been removed if they were situated on adjoining land immediately before the damage or injury occurred.

7. In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person.

8. Given the removal of the tree and the poisoning of the roots, the only remaining matter is whether orders can be made for the payment of compensation for plumbing costs and or for the rectification of the alleged damage.

9. The respondents’ arborist identified the tree as a Eucalyptus saligna (Sydney Blue Gum). The respondents stated that they planted…