McCormick v Cranch

[2007] NSWLEC 298

Land and Environment Court

of New South Wales

CITATION:

McCormick v Cranch [2007] NSWLEC 298

PARTIES:

APPLICANT
Richard McCormick

RESPONDENT
David Cranch

FILE NUMBER(S):

20169 of 2007

CORAM:

Bly C

KEY ISSUES:

Trees (Neighbours) :- removal of Rubber Tree

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

21/05/2007

EX TEMPORE JUDGMENT DATE:

21 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. McCormick, litigant in person

RESPONDENT
Mr D. Cranch, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C
Fakes C

21 May 2007

20169 of 2007 Richard McCormick v David Cranch

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 COMMISSIONERS. This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") in relation to an application by Mr and Mrs R McCormick of 125 Epping Forest Drive, Kearns. The application is detailed in a document under Mr McCormick's signature dated 26th April, 2007 and in particular seeks, relief in relation to alleged impacts associated with trees on the neighbouring property at 3 Jordan Place. The matters referred to therein include expenses associated with an engineers report and a tree surgeons report, legal costs, repair of a fence and costs associated with repair and replacement of an above ground pool and replacement of a television antenna.

2 Mr and Mrs Cranch, the owners of 3 Jordan Place, dispute these contentions.

3 We have now considered the materials provided to us by the parties, have heard their oral contentions and have inspected the trees on the property at 3 Jordan Place, in the context of the applicant's contentions. We have also inspected the applicant's property, particularly the new pool and deck and the relationship of these to the boundary fence and the trees on the neighbouring property.

4 We are satisfied that the parties have, pursuant to s 10 of the Trees (Disputes Between Neighbours) Act 2006 (“the Act”), made efforts to resolve the matter over a long period of time, but this has been unsuccessful. We are also satisfied that the roots of several moderately sized rubber trees at 3 Jordan Place have variously intruded into the applicant's property. Only one of these rubber trees now remains. Otherwise, the vegetation along the boundary comprises of various shrubs, mainly dwarf umbrella trees and a reasonably large palm tree.

5 In relation to the boundary fence, and the applicant's stormwater drain, it is plain to us that there has been some damage to these structures. However, we are not persuaded, to the degree of reasonable probability, that the damage was caused, (in the context the Act), by the tree roots. Hence the payment of compensation for the repair of the fence is not justified

6 In relation to the application for expenses associated with legal matters and as well as an engineers report and a tree surgeons report, we are not satisfied that these matters directly relate to the application before the Court, having preceded the application by some significant time. Hence reimbursement of these expenses is not justified.

7 As for the alleged damage to the above-ground pool, we note that this claim comes in two parts. Firstly, the replacement of a pool liner at a time when the applicant noticed that tree roots were becoming apparent underneath the pool liner. The second is that after that first pool liner was replaced, some years later a similar occurrence resulted, as well as impact on the structure supporting the pool liner itself.

8 Regarding the initial replacement of the pool liner, we are not convinced that this replacement occurred because it had been damaged. It was clearly a matter of inconvenience to the users of the pool, however s 9 of the Act, only requires the payment of compensation for damage.

9 The second aspect of the above-ground pool is that it was said by the applicant that it was removed in its entirety because the liner was unable to be replaced because the structural integrity of the supporting structure had been so damaged that the installation of a further pool liner would be to no real benefit as the entire structure could fail. Whilst it is possible that some damage to the structure could have been caused by the tree roots, we are nevertheless satisfied that this structure had probably reached the end of its reasonable life and bearing in mind that when the first liner was replaced, precautions could have been taken at that time to protect the structure from tree roots.

10 In all of the circumstances we are not satisfied that the neighbours at 3 Jordan Place should be responsible for the cost of replacing this pool structure.

11 As for the remaining issue before the Court, it is our opinion that the one remaining rubber tree could potentially cause damage to the more recently installed structures, being the concrete pool and associated retaining walls. As a consequence, we have decided that this particular tree, which could probably be described as being a relatively poor specimen, should be removed. With its removal, and with its potential replacement by further dwarf umbrella shrubs, or similar plantings, any further root intrusion across the property boundary would most likely be of a minor kind, entirely acceptable in an urban setting and certainly, of an entirely different significance in terms of potential impacts by comparison with the rubber trees.

12 We will thus require pursuant to s 9 of the Act that the owners of No. 3 Jordan Place have this tree removed at their expense within sixty (60) days of the issue of the orders to that effect.

13 The applicant was concerned that the dwarf umbrella trees tend to grow over the fence excessively and require constant pruning. Whilst we are not persuaded that this is a matter of any serious concern, we direct that the owners of the property at 3 Jordan Place, if they decide to plant additional dwarf umbrella shrubs or similar, these should be planted no closer than one metre from the boundary.

___________________

T A Bly
Commissioner of the Court

____________________
J Fakes
Acting Commissioner of the Court
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