Roberts v Denham [2010] NSWLEC 1269

Land and Environment Court of New South Wales

CITATION : Roberts v Denham [2010] NSWLEC 1269

APPLICANT Mrs D Roberts PARTIES : RESPONDENTS Mr M Denham Mrs M Denham

FILE NUMBER(S) : 20497 of 2010

CORAM: Fakes C - Hewett AC

TREES (NEIGHBOURS) :- Damage to footings, retaining wall, paving, guttering KEY ISSUES: Risk of injury to persons No evidence of nexus between tree and damage Pruning ordered; removal refused

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 30/09/2010

DATE OF JUDGMENT: 11 October 2010

APPLICANT Mrs D Roberts [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENTS Mr and Mrs Denham [litigants in person]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C Hewett AC

11 October 2010

20497 of 2010 Roberts v Denham

JUDGMENT 1 COMMISSIONERS: 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 Winmalee against the owners of a tree growing on an adjoining property. 2 The applicant is seeking the removal of the tree as she contends that it has caused damage to her property and will continue to do so. She is also concerned that falling branches or the failure of the entire tree could cause injury to anyone in the house should this happen. 3 The tree is a mature eucalypt identified in Blue Mountains City Council (the council) documents as Eucalyptus eugenioides (Thin-leaved Strinybark) and alternatively as E. microcorys (Tallowwood) (we consider the former to be more likely). It is growing within 2-3m to the west of the applicant's house approximately 700mm above the level of the applicant's property. 4 The applicant contends that the tree has caused the following damage to her property: - Displacement of the foundations of the house under a glass sliding door on the western side of the house in proximity to the tree, - Breaking of terracotta floor tiles lining the sliding door, - Cracking and displacement of concrete block retaining walls, - Separation of joints of brick columns that support a pergola, - Rusting through of guttering on the house, - Lifting of paving under the pergola, and - Puncturing of previous fibreglass panels on the pergola.