Liang & anor v Marsh & anor

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liang & anor v Marsh & anor [2011] NSWLEC 1026

Hearing dates:

9 February 2011

Decision date:

28 February 2011

Jurisdiction:

Class 2

Before:

Fakes C

Decision:

1. The application to prune the Lillypilly is upheld in part.

2. The application to remove the Blue Gum is dismissed.

3. The application for compensation is upheld in part.

Catchwords:

TREES [NEIGHBOURS]; damage to property; injury to persons; caveat emptor; damage to property must be during time property owned by the applicant

Legislation Cited:

Trees (Disputes between Neighbours) Act 2006

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Category:

Principal judgment

Parties:

J Liang (Applicant)
H Xiong (Applicant)
P Marsh (Respondent)
D Gibbins (Respondent)

Representation:

Mr J Liang [litigant in person] (Applicant)
Mr P Marsh [litigant in person] (Respondent)

File Number(s):

20801 of 2010

Judgment

1. This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Denistone against the owners of 2 trees growing on adjoining land.

1. The applicants are seeking the removal of a Eucalyptus saligna (Sydney Blue Gum) on the basis that it has caused damage to a retaining wall, the metal dividing fence and tiles on their roof, and could continue to do so. They are also concerned about risk of injury posed by falling branches, and the failure of the whole tree and or the retaining wall.

1. In relation to the alleged damage caused by the Blue Gum they are also seeking compensation for the repair/ replacement of roof tiles and the repair/ reinstatement of the fence and retaining wall.

1. In addition, the applicants are seeking the pruning of all overhanging branches of an Acmena smithii (Lillypilly) [referred to in the application as a 'Banyan']. The applicants contend that fallen fruit from the tree makes their sloping driveway and pedestrian access slippery, and this has resulted and could result in injury, particularly in winter when it is wet and dark. The applicants are also concerned about branches that have fallen from the tree onto their driveway and the risk of damage or injury these pose.

1. The respondents oppose the removal of the Blue Gum as they contend that the problem with the retaining wall is not caused by the tree but the inadequacy of the nature and construction of the retaining wall itself. They contend that the impact of the tree on the fence is marginal and there has been no additional variation in the fence line for a number of years. The respondents also dispute whether the damage to the tiles is recent and whether the tree in question has caused it.

1. With respect to the Lillypilly, the respondents do not dispute the fact that the tree drops fruit but do dispute the branch drop. The respondents contend that the shedding of fruit is to be expected when anyone resides in an area with many trees. The respondents oppose the…