McClintock v Lah

[2017] NSWLEC 1561

Land and Environment Court

New South Wales

Medium Neutral Citation:	McClintock & Anor v Lah & Anor [2017] NSWLEC 1561
Hearing dates:	06 October 2017
Date of orders:	06 October 2017
Decision date:	06 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Pruning and compensation ordered see [28]
Catchwords:	TREES [NEIGHBOURS] :Damage to property, potential injury; compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Daniel and Megan McClintock (Applicants) Cheol & In Sook Lah (Respondents)
Representation:	Applicants: Mr A Robertson (Solicitor) Respondents: Ms D Lah (Agent) Solicitors: Applicants: Robertson Saxton Osborne
File Number(s):	2017/186993
Publication restriction:	No

JUDGMENT

1. COMMISSIONER: The applicants have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘Trees Act’) for the following orders at the respondents’ expense:

• Biannual monitoring and removal of dead and diseased wood from a Eucalyptus pilularis (Blackbutt) growing on the respondents’ property;

• Remediation of the soil surrounding the Blackbutt;

• Compensation/reimbursement of insurance excess, arborist’s report, filing fee and legal fees.

2. The orders are sought on the applicants’ contention that branches falling from the tree have caused, and could continue to cause, damage to their property, specifically the roof of their dwelling, and could cause injury to anyone on their property.

3. In regards to the last proposed order, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

4. The respondents’ position is that the tree is healthy and they have given the applicants’ permission to prune the tree at their expense. They question whether the applicants’ evidence proves that the damage to the applicants’ roof was caused by branches from the Blackbutt; as such, the respondents reject the claim for reimbursement of the insurance excess and other costs.

Relevant background

5. The applicants purchased their Castle Hill property in 2011. In late 2013, the applicants raised some concerns about branches falling onto their property from trees growing on the respondents’ land; in particular from the Blackbutt and an Angophora costata (Sydney Red Gum). According to the applicants’ evidence (Exhibit B), the first respondent was shown some of the branches that had fallen from the trees and which had allegedly caused damage to some external lighting and landscaping. The applicants suggested that the respondents engage an arborist to assess and prune the trees.

6. On or about 15 March 2014, during a storm, a dead branch fell from the Blackbutt onto the applicants’ roof. The branch pierced the tiles and the ceiling below. The State Emergency Services were contacted and immediately after, the respondents were notified of the damage. The resulting claim required the applicants to pay $500 excess on their…