McDonald v Limon

[2008] NSWLEC 1100

Land and Environment Court

of New South Wales

CITATION:	McDonald v Limon [2008] NSWLEC 1100
PARTIES:	APPLICANT J McDonald RESPONDENT P & J Limon
FILE NUMBER(S):	21128 of 2007
CORAM:	Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Removal of trees
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	18/02/2008
EX TEMPORE JUDGMENT DATE:	18 February 2008
LEGAL REPRESENTATIVES:	APPLICANT J McDonald RESPONDENT P & J Limon

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

18 February 2008

21128 of 2007 J McDonald v P & J Limon

JUDGMENT

The decision was given during the hearing on 18 February 2008.
This written judgment reflects the findings and the background documentation provided as part of the proceedings.

1 ACTING COMMISSIONER: Part of the driveway to Mr McDonald’s home in the southern highlands of NSW appears to have subsided about 0.2 m. The subsidence of one side of the driveway and its concrete edging is beside a row of radiata pine trees growing on his neighbour’s property. Mr McDonald says the radiata pine trees have caused the subsidence.

2 Mr McDonald wants the trees removed. He is not seeking compensation.

3 An application to the Court under the Trees (Disputes Between Neighbours) Act 2006 is only valid for a tree to which the Act applies that is situated on adjoining land.

4 The Court must also be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met before making an order regarding the tree.

These tests are:
Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The issues

6 The issues in this case are:

• Are the trees situated on land adjoining Mr McDonald’s property ?
• Have the trees caused damage, are they causing damage, or are they likely in the near future to cause damage to Mr McDonald’s property ?

Location of the trees

7 Mr McDonald provided an aerial photo produced by Wingecarribee Shire Council showing property boundaries of his and nearby properties. He also provided a survey dated 3 – 5 – 94 showing details of the proposed driveway and the boundary of Mr McDonald’s property. These documents support Mr McDonald’s statement at the hearing that he does not own the driveway, it belongs to the owner of 14 Holly Road, but Mr McDonald has right-of-way over the driveway.

8 On this basis, the trees are not on adjoining land, and therefore this is not a valid application.

9 However, if my assessment on this matter is faulty, I have also considered the issue of damage.

Damage

10 The concrete edge and driveway surface close to the row of radiata pines appears to have subsided by up to 200 mm. The other side of the driveway and the garden bed between the driveway and the trees does not appear to have subsided.

11 Mr McDonald claims that the roots of the trees have somehow diminished the soil under one side of the driveway, but he has not provided a satisfactory explanation of how that has happened nor why the soil closer to the trees and the far side of the driveway is not affected.

12 Mr McDonald and Mr & Mrs Limon discussed the use of the driveway and other possible causes for subsidence of the driveway. I understand that the driveway is close to a drainage easement and has at time been flooded. Also, Mr McDonald has had contractor’s trucks weighing 2 – 5 tonnes on the driveway approximately 10 times in the last 15 years; and 14 Holly Road was rented to a builder for two years, that builder using the driveway daily with his two-tonne truck.

13 On the basis of the above information I am not persuaded that the trees have caused or are causing damage to the driveway, nor are they likely to cause such damage in the near future.

14 I note that at the hearing Mr McDonald said he no longer has a concern that the trees may fall due to wind forces.

Conclusion

15 The application is dismissed because the trees are not on land adjoining Mr McDonald’s property, there is no satisfactory evidence that the trees have or are causing damage to the driveway, and Mr MacDonald no longer has a concern that the trees will cause damage by falling.

___________________

Peter Thyer
Acting Commissioner of the Court