Prince v Davies

[2011] NSWLEC 1087

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prince & anor v Davies & anor [2011] NSWLEC 1087

Hearing dates:

11 April 2011

Decision date:

11 April 2011

Jurisdiction:

Class 2

Before:

Fakes C

Decision:

Application to remove tree dismissed;

Repair of paving ordered

Catchwords:

TREES [NEIGHBOURS]; damage to property;

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Robson v Leischke [2008] NSWLEC 152

Category:

Principal judgment

Parties:

E & K Prince (Applicants)
N & N Davies (Respondents)

Representation:

Mr K Prince (Applicant in person)
Mrs E Prince (Applicant in person)

Mr N Davies (Respondent in person)

File Number(s):

20018 of 2011

Judgment

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

1. This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Naremburn against the owners of a tree growing on an adjoining property.

1. The applicants are seeking the removal of the tree as they contend it has caused damage to their property. This damage includes:

lifting of paving tiles and cracking of a concrete edge;

staining of pavers and outdoor furniture by pollen;

growth of mould on pavers and furniture due to shading by the tree;

bird droppings and pollen from the tree onto cloths on the clothesline; and

debris in the guttering.

1. The applicants are also seeking removal of roots from their back garden and repair of damage caused by the tree. In addition they are seeking reimbursement of costs associated with the making of the application including the filing fee, legal costs and a report identifying the species of the tree.

1. Dealing first with the compensation. Commissioners do not have the jurisdiction to award costs. If these are sought a further application must be made.

1. The tree is an Alnus acuminata subsp. glabrata or Evergreen Alder. It is one of 2 specimens planted adjacent to the rear boundary fence on the respondents' property. It is a mature specimen in healthy condition. The tree in question overhangs the rear courtyard of the applicants' townhouse. There has been some pruning of the canopy carried out in the past.

1. The applicants contend that this species is considered a 'weed'/ undesirable species by Willoughby Council and that this supports their position regarding its removal. The respondents value the tree for the shade and amenity it provides and do not want to remove it.

1. The major damage said to be caused by the tree is the lifting of pavers in the courtyard. This courtyard is approximately 1 m lower in grade than the respondents' property. The soil in a narrow garden bed along that boundary wall is retained by a log retaining wall. There is no obvious displacement of this wall.

1. I was shown several lifted pavers as well as…