Johnson v Budden

[2021] NSWLEC 1749

Land and Environment Court

New South Wales

Medium Neutral Citation:

Johnson v Budden [2021] NSWLEC 1749

Hearing dates:

15 December 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [41] below.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to fence and wall – is tree overhanging house causing excessive maintenance - whether damage to house is caused by the tree

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Roberts vand Denham [2010] NSWLEC 1269

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

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safework Australia ‘Guide to managing risks of tree trimming and removal work’ July 2016

Category:

Principal judgment

Parties:

Rachael Johnson (Applicant)
Simon Budden (Respondent)

Representation:

R Johnson (Self-represented) (Applicant)
P Jayne (Solicitor) (Respondents)

Solicitors:
SWS Lawyers (Respondent)

File Number(s):

2021/290706

Publication restriction:

No

Judgment

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

Background

1. The applicant, Rachael Johnson, shares a side boundary between her property and that owned by the respondents, Simon and Vicki Budden, in Rutherford, in the Maitland Local Government Area (Council). The respondents’ property is leased to tenants. Ms Johnson occupies her residence, which she has owned for many years. A dispute between the parties appears to have originated with stormwater issues in 2012.

2. At issue is a Cinnamomum camphora (Camphor laurel) (the tree) that is growing close to the boundary in the respondents’ rear yard. Ms Johnson claims that it has caused, is causing, and is likely to cause damage to her property in the near future.

3. Ms Johnson provided evidence of correspondence to Mr Budden, to his real estate agent (the agent), and attempts to organise mediation through the Community Justice Centre, all of which were apparently ignored by the respondents. Mr Budden claims to have not received much of this correspondence.

4. As her claims remained unaddressed, Ms Johnson commenced proceedings in 2021, pursuant to s 7 of Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage as a result of the tree.

The applicant’s claim

5. Ms Johnson seeks for the court to consider making orders “to remedy and prevent a destructive and invasive” Camphor laurel tree from (causing) any further damage to her property. As evidence of damage, she notes;

1. Damage to common fence.

2. Cracking of concrete and starting to lift (concrete) slab.

3. Cracked pipes and minimal water pressure, and fears that another pipe has been damaged (having previously replaced the downpipe closest to tree).

4. Cracked the sewer pipe that is located in my backyard.

5. $10,000 Sandstone retaining wall appears to have been pushed…