Missenden v Thomson

[2012] NSWLEC 1226

Land and Environment Court

New South Wales

Medium Neutral Citation:	Missenden v Thomson & anor [2012] NSWLEC 1226
Hearing dates:	16 August 2012
Decision date:	16 August 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove a tree upheld; application for compensation upheld in part.
Catchwords:	TREES [NEIGHBOURS] Damage to property; abatement likely to destabilise a tree
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Ms K Missenden (Applicant) Mr P and Mrs F Thomson (Respondents)
Representation:	Applicant: Ms K Missenden (Litigant in person) Respondents: Mr P and Mrs F Thomson (Litigants in person)
File Number(s):	20705 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: This is an application made under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Oyster Bay against the owners of a tree growing on an adjoining property.

1. The applicant is seeking orders for the removal of the tree and compensation for the rectification of a storm water pipe said to have been damaged by the tree. The applicant requests that the respondents pay for these works and for the costs associated with obtaining expert reports.

1. In her initial application, the applicant also sought compensation for damage to the western wall of her dwelling however her insurance company has agreed to meet those costs and that element of the application is withdrawn (exhibit E).

1. With respect to compensation for expert reports, Commissioners do not have the jurisdiction to award such costs. A separate application by way of a Notice of Motion must be made and the matter would be heard by a Judge or Registrar of the Court.

The tree

1. The tree is a mature Eucalyptus pilularis (Blackbutt). It was well established when the respondents purchased their property 40 years ago. It is highly likely that the tree is a remnant of the original forest. The tree is within 500 mm of the common boundary between the parties' properties.

1. The applicant and her family have lived on their property for five years.

The stormwater pipe

1. The damaged pipe is a 300mm diameter concrete stormwater pipe that collects water from a driveway shared by several properties. The pipe is thought to have been installed when the area was sub-divided about 60 years ago. Mr Kevin Dagg, the applicant's builder, was present at the hearing. He agreed that the pipe was likely to be original and he confirmed that the standard jointing practice was to concrete the ' eight foot' sections of pipe together.

1. The pipe is well within a metre of the common boundary. It sits on a mixture of sandy clay and sandstone floaters typical of the area. It is above the level of the nearby lower-ground floor room of the applicant's dwelling. The pipe was originally covered by a path and soil and retained by a single thickness brick wall.

1. Mr Dagg discovered the…