Barbour & Anor v Stillianesis & Anor [2010] NSWLEC 1275

Land and Environment Court of New South Wales

CITATION : Barbour & Anor v Stillianesis & Anor [2010] NSWLEC 1275

APPLICANTS G Barbour & S-K Lee PARTIES : RESPONDENTS C & D Stillianesis

FILE NUMBER(S) : 20588 of 2010

CORAM: Moore SC - Hewett AC

KEY ISSUES: RES JUDICATA :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barbour & anor v Stillianesis [2010] NSWLEC 1120 Hinde v Anderson and Anor [2009] NSWLEC 1148

DATES OF HEARING: 12 October 2010

EX TEMPORE JUDGMENT DATE : 12 October 2010

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC HEWETT AC

12 October 2010

20588 of 2010 Barbour & Anor -v- Stillianesis & Anor

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This application arises concerning a peppercorn tree located approximately 1.5 m on the respondents' property from the boundary with the applicants' property. The tree was the subject of a determination by Fakes C in May 2010 (see Barbour & anor v Stillianesis [2010] NSWLEC 1120). During the course of this hearing, she determined that she was not satisfied, on the evidence that was then available to her, that the lifting of portion of the fence and of a concrete slab in the vicinity of the rear entrance to the property had been caused by the roots of the peppercorn tree. As consequence she dismissed that element of the applicants' claim. 2 The applicants now present a further application based on the exposure of two substantial roots from the peppercorn tree – one of which would appear to be some 150 mm in diameter and the other one would appear to be some 120 mm in diameter at the point where they passed under the concrete slab that is the basis of the application and which clearly has been lifted and cracked. 3 The matter having been dealt with and determined by Fakes C, the only basis upon which we can now proceed to entertain and deal with a further application is if there has been some are materially significant change in the circumstances or extent of impact on the applicants' property (as was discussed in Hinde v Anderson and Anor [2009] NSWLEC 1148) or if there were evidence now available that could not have been available as at the date of the original hearing. Neither of those preconditions has been satisfied. 4 First, although there is photographic evidence showing the horizontal cracking in the slab, that photographic evidence, one photograph of which is dated late May 2010 and the other in mid to late July 2010, shows no discernible additional cracking. As a consequence, we have no evidence upon which we could be satisfied that there is some material change in circumstances. 5 With respect to the exposure of the roots, those roots were not exposed at the time of the hearing before Fakes C and there is no reason given why they could not have been exposed for her consideration at that time. As a consequence, we are satisfied that, in the interests of the finality of litigation, there is no basis upon which we could make any further orders and reconsider the merits of the matter in light of the decision given by Fakes C in May. 6 As consequence, it is inevitable that under the circumstances we must dismiss this application. 7 However, that is not the end of the matter. If at some stage in the future the applicants are able to demonstrate by measurement or photograph that there is some material change in the damage to their property, then that will not preclude the making of a further application. This might, at that stage, provide a proper evidentiary basis upon which there could be a further merit consideration of those matters and the extent of any damage that might be revealed as having occurred since May 2010. 8 Second, with respect to the tree roots, there is no doubt that the roots are substantial and extend under the slab that has been lifted. Whilst not making any comment on causation (as that would be an inappropriate consequence of proceedings in which we are not making any merit determination), it is appropriate to note that the owners of the tree are now on express notice of the presence of those substantial roots that are underneath the applicants' slab. 9 The fact that the applicants have drawn those matters to the attention of the respondents means that, if there is some future application, the actions (whether by intervention or by non-intervention) of the respondents during the intervening period are matters that can appropriately be taken into the consideration by the Court on some future application (as a consequence of the provisions of s 12(h)(ii) of the Tree (Disputes Between Neighbours) Act 2006 in which the actions or inactions of a party can be taken into account in making a merit determination on some future application). 10 It therefore necessarily follows, from the circumstances of this application, that the application is dismissed.