Woo v Chan

[2010] NSWLEC 1317

Land and Environment Court

of New South Wales

CITATION:

Woo v Chan [2010] NSWLEC 1317

PARTIES:

APPLICANT
Mr J Woo

RESPONDENT
Mr K.P. Chan

FILE NUMBER(S):

20677 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property, compensation; damage to a concrete driveway; application dismissed

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

16/11/2010

EX TEMPORE JUDGMENT DATE:

16 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Woo [litigant in person]

RESPONDENT
Mr P Chan [agent]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

16 November 2010

20677 of 2010 Woo v Chan

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

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

2 The applicant contends that trees on the adjoining property have damaged his property and indirectly could cause injury. The applicant is seeking compensation for the repair or rebuilding of a concrete driveway said to have been partially damaged by the decaying roots of a stump of a tree on the adjoining property. The risk of injury is associated with the difficulty of driving up the damaged driveway.

3 The applicant was also seeking an order to enable the severing of roots from a Jacaranda that may cause uplift of pavers. This matter is no longer pressed by the applicant.

4 The applicant’s driveway slopes quite steeply down from the street to the rear of his property. The dwelling on the land dates from the 1920s. The driveway is more recent but thought by the parties to be in excess of 30 years old. It is retained by sandstone blocks and the substrate beneath the concrete surface is of unknown composition.

5 Adjacent to the steepest section of driveway is the stump of a tree removed by the respondent at least 15 years ago. The applicant contends that the roots from the tree have penetrated the substrate below the concrete and are now decaying. This he says has significantly contributed to the cracking, subsidence and general deterioration of the concrete, particularly adjacent to and down-slope of the stump.

6 The applicant bases his contention on his experience as a road engineer and a report from Mr Andrew Trotter, a landscape designer. There was no excavation/ removal of the concrete to prove the contentions.

7 The applicant is seeking a contribution of 30% of the cost of the repair/ replacement of the concrete section of the driveway, a sum he estimates to be about $1200.00.

8 The respondent does not think that any contribution is payable given the length of time since the tree was cut down and the age of the concrete. He considers the driveway to be near or past its useful life.

9 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person.

10 After viewing the driveway and the stump I consider there is insufficient evidence to prove the nexus between the remains of the stump and the condition of the driveway. I was shown no evidence of roots under the slab or between the cracks. Mr Trotter is not an engineer or an arborist and his report can be given little if any weight as it is an unsubstantiated opinion. I am not satisfied that any of the tests under s 10(2) are satisfied and therefore the Court has no jurisdiction to make an order.

11 Even if I am wrong on the contribution of the tree to the damage, by the discretion afforded by s 9 of the Act, no order would be made for compensation. There are many likely contributing factors apart from the tree including the age of the driveway, its construction on fill of an unknown nature and normal wear and tear.

12 I agree with the respondent that a considerable time has past for any payment of compensation attributable to possible root damage to be reasonable. When asked, the applicant stated that he brought the damage to the attention of the respondent some 5 years ago but there is no evidence to suggest that the issue has been pressed until quite recently.

13 As a result of the forgoing, the Orders of the Court are:

1. The application is dismissed.

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