Pearson v The Owners - Strata Plan No 12969

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pearson v The Owners – Strata Plan No 12969 [2017] NSWLEC 1110
Hearing dates:	13-14 February 2017
Date of orders:	06 March 2017
Decision date:	06 March 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [109]
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury; causation; reactive clay soils; pre-existing condition; damage within the period of the applicant’s ownership; apportionment of costs
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Act 1979
Cases Cited:	Liang & anor v Marsh & anor [2011] NSWLEC 1026 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Anne Pearson (Applicant) The Owners – Strata Plan No 12969 (Respondent)
Representation:	Counsel: Applicant: Ms J McKelvey Respondent: Mr M Seymour Solicitors: Applicant: Cordato Partners Lawyers Respondent: JS Mueller & Co Lawyers
File Number(s):	165826 of 2016

judgment

1. COMMISSIONER: The applicant, Ms Pearson, owns a property in Enmore. She contends that trees growing on the respondent’s property, along the common boundary, have caused damage to her property and could cause injury to anyone on her property.

2. Ms Pearson has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders to be made (as summarised from the Application):

• Removal of trees 1 and 2;

• Payment of $9,185 for replacement of the sewer, said to have been damaged by T1 and T2;

• Payment of $2,189 for removal and replacement of a stormwater pipe plus the costs of reinstating pavement and landscaping;

• Compensation of $2,364 for damage to property not covered by insurance;

• Removal and replacement of the boundary fence;

• Installation of a root barrier to protect her dwelling from the roots of Trees 3, 4, 5 and 6;

• Restoration of her property to a maximum sum of $150,000; and

• The respondent to pay for all of the above.

3. The proposed orders include a timeline for the undertaking of the proposed works.

4. Following further discussions and a conciliation under s 34 of the Land and Environment Court Act 1979, the order with respect to the root barrier is not pressed and the amount of compensation sought has been revised.

5. The orders now sought are (as summarised):

• Removal of trees 1 and 2;

• Payment of $3,061.66 for the replacement of the sewer due to damage from roots of T1 and T2;

• Payment of $2,189 for removal and replacement of a stormwater pipe plus the costs of reinstating pavement and landscaping of $1,745;

• Reimbursement of the insurance excess of $250.00 for damage to property;

• Rectification of the boundary fence;

• Restoration of the applicant’s property to a maximum amount of $99,457.34 [as per the Schedules in Exhibit C].

• All costs to be borne by the respondent.

6. The respondent disputes the factual basis of the claim and opposes these orders. The respondent values the trees for the amenity they provide to the owners and occupiers of the premises…