Cheng v Robertson

[2024] NSWLEC 1226

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cheng v Robertson [2024] NSWLEC 1226

Hearing dates:

15 April 2024

Date of orders:

02 May 2024

Decision date:

02 May 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the tree damaged a stormwater pipe – whether the tree is likely to damage a sewer pipe – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Joaquim v Adamson [2009] NSWLEC 1312

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Georges River Development Control Plan 2021

Category:

Principal judgment

Parties:

Lissa Cheng (First Applicant)
John Bridge (Second Applicant)
Scott Robertson (First Respondent)
Bo Robertson (Second Respondent)

Representation:

Counsel:
L Cheng (Self-represented) (First Applicant)
J Bridge (Self-represented) (Second Applicant)
S Robertson (Self-represented) (First Respondent)
B Robertson (Self-represented) (Second Respondent)

File Number(s):

2024/41828

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Bo Robertson and Scott Robertson (together, referred to in this decision as the respondents or the Robertsons) have a mandarin tree (the tree) in the back garden of their Carlton property. Their neighbours to the northwest, Lissa Cheng and John Bridge (together, the applicants), have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders to remedy and prevent damage to their property. In their original application filed on 2 February 2024 (Exhibit A), the applicants sought orders for: removal of the tree; compensation for plumbing works and related costs for repairing their stormwater pipe during 2023; costs of future investigative work to determine if tree roots have damaged, or are likely to damage, their sewer pipe, and the cost of any remediation work arising; and costs of bringing this matter to the Court, including the costs of reports and the Court’s application fee. On 6 March 2024, the applicants filed amended orders (Exhibit B), in which they no longer sought an order for costs associated with making their application, but added an order seeking reinforcement or rebuild of a retaining wall on the respondents’ property to prevent the collapse of paving on the applicants’ property.

2. As is usual in Class 2 tree matters, the hearing took place onsite. The parties, all self-represented, showed the Court the relevant features at the site, including (but not limited to): the mandarin tree, the boundary fence, the retaining wall on the respondents’ land near the common boundary, the areas on the applicants’ property where pipe repair works were carried out during 2023, the approximate alignment of the applicants’ stormwater pipe and sewer pipe, the lie of the land, and young palm tree shoots on the respondents’ land near the common boundary. Once we had observed everything, we sat…