Foley v Thompson [2024] NSWLEC 1129

Land and Environment Court New South Wales

Medium Neutral Citation: Foley v Thompson [2024] NSWLEC 1129 Hearing dates: 14 March 2024 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether trees have caused damage – application refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 10, 12 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Deborah Foley (Applicant) Neville Thompson (First Respondent) Christine Thompson (Second Respondent) Representation: Counsel: D Foley (Self-represented) (Applicant) P Santone (Agent) (Respondent) File Number(s): 2023/455214 Publication restriction: Nil

Judgment

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

Background 1. COMMISSIONER: Christine and Neville Thompson (the respondents) have planted Leyland cypress trees (Cupressus × leylandii) (the trees) on their Belmont property, forming low hedges along the common boundary they share with Deborah Foley (the applicant). The trees are in a raised narrow bed close to Ms Foley's garden and dwelling and to the southern side of her battle-axe driveway. In September 2023, Ms Foley called a contractor to her property to fix a leaking water pipe. The contractor replaced the entire length of water pipe, installing a new pipe from the water meter at the front of Ms Foley's property, along the northern side of her driveway, beneath the driveway and then through her garden to her dwelling. The contractor advised Ms Foley that this was the most efficient remedy, rather than removing a larger area of driveway to find the leak in the original pipe beneath the driveway. 2. Ms Foley informed the Thompsons and asked them to remove their trees and to pay for the plumbing works. The Thompsons thought this was unreasonable. Ms Foley then applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the Thompsons to remove all the trees near the common boundary and to compensate Ms Foley $4,244.36 for the cost of the plumbing works. 3. The Thompsons proposed alternative orders including the removal of some trees and the construction of a screening fence in their place. 4. The hearing took place onsite, allowing the Court to observe the trees and all relevant issues.