Machin v Moratelli

[2014] NSWLEC 1049

Land and Environment Court

New South Wales

Medium Neutral Citation:	Machin v Moratelli [2014] NSWLEC 1049
Hearing dates:	24 February 2014
Decision date:	19 March 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See paragraph [58] of this judgment
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006 Moroney v John [2008] NSWLEC 32 Theuma & anor v Di Bella & anor [2013] NSWLEC 1156
Category:	Principal judgment
Parties:	Mr J Machin (Applicant) Mr S Moratelli (Respondent)
Representation:	Applicant: Mr C Barnes (Solicitor) Respondent: Ms B Hay (Solicitor) Applicant: T.H. Walker Solicitors Respondent: Bronwyn Hay Solicitor & Attorney
File Number(s):	20948 of 2013

Judgment

1. COMMISSIONER: The applicant is seeking orders for the removal of a mature Harpephyllum caffrum (Kaffir Plum) growing in the north-western corner of the respondent's property. He is also seeking compensation for and or rectification of damage he says the tree has caused to his property. Apart from the alleged damage to his property, the applicant is also concerned that someone may be injured should a branch fall from the tree.

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

1. The respondent values the tree and does not want to remove it.

Relevant background

1. The applicant's dwelling was built in about 1942. The applicant purchased the property in 1985. He states in his affidavit that at the time of purchase he was aware of damage to certain elements of the house and to the sewer pipes. He contends that the roots of the Kaffir Plum had caused this damage. At the time of purchase, he also observed that a portion of the roof tiles and the guttering were "swamped with dense leaves".

1. In 1986/87, the damaged sections of the dwelling were rebuilt, the sewer and storm water pipes replaced with PVC, guttering and eaves were replaced, as were damaged ceilings.

1. Because of the size and proximity of the tree and the shade it produced, the applicant installed two skylights.

1. According to the respondent's affidavit, the applicant discussed the tree and his desire to remove it in late 1985. She refused permission for removal but did not object to the pruning of overhanging branches. In 1986 Manly Council granted conditional approval for the removal of three branches. No pruning has been undertaken since then.

1. Approximately 15 years ago, the applicant installed a new brick path to replace the original path he submits was damaged by the tree's roots.

1. The respondent states in her affidavit that the last time she spoke to the applicant was in 2006 in regards to the timber dividing fence. They agreed that the fence should be repaired with the parties sharing the costs. The affidavit makes no mention of the tree in regards to the condition of the fence.

1. In 2012 the applicant's solicitors wrote to the respondent outlining…