Woo v Chan [2010] NSWLEC 1317

Land and Environment Court of New South Wales

CITATION : Woo v Chan [2010] NSWLEC 1317

APPLICANT Mr J Woo PARTIES : 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

APPLICANT Mr J Woo [litigant in person] LEGAL REPRESENTATIVES:

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

JUDGMENT

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.