Page v Lang

[2012] NSWLEC 1205

Land and Environment Court

New South Wales

Medium Neutral Citation:

Page v Lang [2012] NSWLEC 1205

Hearing dates:

13 July 2012

Decision date:

13 July 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)The application is upheld in part.

See para 25 of Judgment.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of damage; risk of injury; pruning ordered; compensation ordered.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Robson v Leischke [2008] NSWLEC 152

Category:

Principal judgment

Parties:

David Page (Applicant)

Fay Marion Lang (Respondent)

Representation:

Mrs Page (Wife and agent) (Applicant)

Mr Lang (Husband and agent) (Respondent)

File Number(s):

20382 of 2012

Judgment

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

1. ACTING COMMISSIONER: The landscape of suburban Warrawee is dominated by large trees. Mr Page says his property has been damaged by limbs falling from one such tree that grows on an adjoining property, resulting in some expense to himself. He is also concerned that other limbs may fall from the tree, posing a risk of further damage and of injury. Under the Trees (Disputes Between Neighbours) Act 2006 he has applied for orders for compensation and for the tree to be pruned and maintained. He also seeks orders for an annual termite inspection.

1. Mrs Lang has obtained a permit from Ku-Ring-Gai Council for tree pruning works but wants Mr Page to pay half of the cost of those works.

1. The issues to be determined are:

• Does the Court have jurisdiction to make orders?
• What amount of compensation, if any, would be appropriate to remedy any loss incurred by Mr Page?
• What works are required, if any, to prevent the tree causing damage to Mr Page's property, or causing injury, and how should those works be carried out?
• How should the cost of any tree works be apportioned?

Onsite hearing

1. The onsite hearing allowed observation of the tree from both properties and of the areas of Mr Page's property he says are at risk from the tree. The Pages have lived at their property for 15 years and the Langs have lived at theirs for 10 years.

1. The tree, a mature Eucalypt near the rear boundary, has grown here for many years and was already a large tree before either party purchased their property. It is approximately 25 m tall and is in good health. Its stem forks into two near its base. It has some overextended limbs, typical amounts of deadwood, but generally good structure. Due to the aspect, and possibly the presence of a nearby tree that has now been removed, its crown is biased to the north so that it predominantly overhangs the Pages' tennis court in the rear garden of their property. Fences around the tennis court are in good condition, having been repaired after limbs fell and caused damage. Small square patches on the tennis court surface indicate where it has been repaired.

1. Two branch stubs at around 8 and 10…