Smith v Thomson [2008] NSWLEC 18

Land and Environment Court of New South Wales

CITATION : Smith v Thomson [2008] NSWLEC 18

APPLICANT Kenneth George Smith PARTIES : RESPONDENT Mrs F. Thomson

FILE NUMBER(S) : 21065 of 2007

CORAM: Hoffman C - Fakes AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :- Damage to property by a tree

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 14/01/2008

DATE OF JUDGMENT: 14 January 2008

APPLICANT Kenneth George Smith, litigant in person

RESPONDENT LEGAL REPRESENTATIVES: Mrs F. Thomson, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C Fakes AC

14 January 2008

21065 of 2007 Kenneth George Smith v Mrs F. Thomson

JUDGMENT 1 This is Appeal No. 21065 of 2007 between Kenneth Smith and Mrs F. Thomson. Mr Smith lives at No. 5 Cormiston Avenue, and Mrs Thomson lives at No. 8 Majors Bay Road. They share a corner post boundary as neighbours, however they are not back to back neighbours.

2 The hearing was held part way on both properties by visually inspecting the subject tree and looking at the alleged damage. The hearing was also attended by Mr Colin Peterson of No. 6 Majors Bay Road which is back to back neighbours with Mr Smith.

3 On inspection Mr Smith confirmed his evidence of three occasions in the past two years of sewer damage and repair works that are he said, to be caused by roots of the subject tree. I note Mr Smith has not claimed compensation for these events. Mr Smith also stated that dead branches had fallen onto the fence between his property and No. 7 Cormiston Avenue. 4 The tree itself is a large Camphor Laurel tree and covers completely the rear third of Mrs Thomson's property and it overhangs several other neighbours. The trunk is located close to the rear boundary adjoining Mr Peterson's property and the root ball actually projects over the fence line into Mr Peterson's property adjoining a garden shed on his property.