Walker v Algie

[2012] NSWLEC 1185

Land and Environment Court

New South Wales

Case Title:

Walker v Algie & anor

Medium Neutral Citation:

[2012] NSWLEC 1185

Hearing Date(s):

10 July 2012

Decision Date:

10 July 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

Application upheld in part.
Tree to be removed at the respondents' expense.
Respondents to carry out repair works to applicant's property.
Applicant to provide access for works.
Cost of repair works to be divided between the parties.

Catchwords:

TREES [NEIGHBOURS] Damage to property; risk of injury; removal ordered; repairs to applicant's property; compensation ordered.

Legislation Cited:

Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Timmins v Park [2011] NSWLEC 1308

Texts Cited:

Category:

Principal judgment

Parties:

Mrs Irene Walker (Applicant)

Mr James Algie and Mrs Jennifer Algie (Respondents)

Representation

- Counsel:

- Solicitors:

Ms Linda Walker (Daughter, agent for the applicant)

Mr James Algie and Mrs Jennifer Algie (Respondents in person)

File number(s):

20387 of 2012

Publication Restriction:

JUDGMENT

1. COMMISSIONER: A Hills Weeping Fig grows in the front garden of the Algies' property in a quiet suburban street in Keiraville. It is less than 30 cm from the fence along the common boundary with their neighbour, Mrs Walker. Mrs Walker is concerned that roots from the tree have damaged her driveway and outdoor tiled, paved and concreted areas. She is also concerned that roots may damage her dwelling. She has applied to the Court under the Trees (Disputes Between Neighbours Act) 2006 to have roots removed, damage on her property repaired and for the tree to be removed if that is necessary to prevent further damage. She sought orders for a limb to be removed from the tree but that those works have been done. She also seeks costs of reports - an arborist report and an engineering report. Commissioners do not have the power to award costs so that would require a Notice of Motion to be heard by a Judge.

2. The Algies concede that roots from their tree have caused damage. They wish to prevent further damage and are willing to pay for repairs of damage caused by roots of their tree, to a reasonable extent, based on their view that they were only notified in November 2011 of any root issues (although Mrs Walker's view is that they were notified three years ago).

3. The court must determine the following:

   ·Has the tree caused damage to Mrs Walker's property?

   ·What is the cost of repairing the damage?

   ·How should that cost be apportioned?

   ·What is required to prevent further damage?

Onsite hearing

1. At the onsite hearing Mrs Walker showed us the damage to her property that she says has been caused by the tree, consisting of:

   ·cracking and lifting of the driveway;

   ·cracking and lifting of concrete in front of the garage;

   ·uneven paving and tiling around the dwelling;

   ·displacement of outdoor steps and the balcony (although repair of same is not part of the claim); and

   ·displacement of the fence.

2. Roots could be seen adjacent to…