MacPhail v Ware [2008] NSWLEC 1213

Land and Environment Court of New South Wales

CITATION : MacPhail v Ware [2008] NSWLEC 1213

APPLICANTS R & G MacPhail PARTIES : RESPONDENTS K & R Ware

FILE NUMBER(S) : 20296 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 14 May 2008

EX TEMPORE JUDGMENT DATE : 14 May 2008

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C THYER AC

14 May 2008

08/20296 MacPhail v Ware

JUDGMENT

The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONERS: Mr and Mrs MacPhail live at 37Fowler Road, Illawong – a battle-axe allotment. Mr and Mrs Ware live at 35 Fowler Road along the north-eastern side of this battle-axe allotment. 2 There are a number of trees planted in both properties along the McPhails' access way and extending into the MacPhails' property close to the common boundary between them. Mr and Mrs MacPhail have made an application of the Court pursuant to the Trees (Dispute between neighbours Act) 2006 concerning three of those trees. 3 Two of those trees are located on the boundary and we have considered whether in each case they are located "principally" on the Wares' property as is required by s 4(3) of the Act to give us jurisdiction to deal with them. This issue will be dealt with when considering each of the trees. 4 We are also satisfied pursuant to s 10(1) of the Act that Mr and Mrs MacPhail have endeavoured to resolve the dispute between themselves and the Wares at various times with respect to the various trees on dates since June 2007. 5 At this hearing, the MacPhails have indicated that they have not drawn these matters to the attention of the Wares prior to June 2007 – being a matter which we will take into account when considering what decision, if any, we should make with respect to any of the trees. 6 The applications with respect to each of the trees fall in two parts. The first is an order for removal of the tree being sought and the second is an order for compensation payment being sought with respect to what Mr and Mrs MacPhail say is the damage caused by the roots of each of the trees to the concrete slabs of their driveways. 7 For 35 m of the driveway from Fowler Road toward the MacPhails' house, the driveway comprises two 900 mm wide concrete slabs with a 600 mm grass strip between them. From a turning point in the driveway, a further 25 m (subject to a proposal for re-concreting at full width) is presently 2.4 m of concrete. The re-concreting of the driveway is proposed to be across the whole of the width of the driveway for the whole of the 60 m length of that driveway. 8 Mr and Mrs MacPhail obtained three quotations for the replacement of this 60 m portion of the driveway (being an area, we calculate, in total of 144 sq m). Those quotations range from, in rough terms, $12,000 to $18,000 – thus representing a price range of $83 per sq m to $125 per sq m. 9 The driveway has a number of cracks and instances of lifting at various expansion joints and at intermediate points between them. There is, at least at the innermost point of the relevant section of the driveway, some evidence of subsidence as well. 10 Mr and Mrs MacPhail have advised us that they proposed to replace the 60 m of the driveway whatever our decision about compensation as they have been advised that they have a legal exposure for any injury to any visitor if they do not do so. 11 We therefore proceeded to consider the matter on the basis that the driveway will be replaced and to consider what contribution, if any, the Wares should be obliged to make on that basis. 12 The application is for removal all three of the trees and for an appropriate proportionate payment of compensation costs towards the replacement of the driveway. 13 When the Court considers applications pursuant to the Trees (Dispute between neighbours Act) 2006, there are a number of tests which we are obliged to consider that are set by s 10(2)(a) and (b) of the Act. These tests are: o Has the tree caused damage to the applicant's property ? o Is the tree now causing damage to the applicant's property ? o Is the tree likely in the near future to cause damage to the applicant's property ? o Is the tree a cause likely of injury to any person?