Grant v Fletcher & anor [2011] NSWLEC 1108

Land and Environment Court New South Wales

Medium Neutral Citation: Grant v Fletcher & anor [2011] NSWLEC 1108 Hearing dates: 23 February 2011 Decision date: 07 March 2011 Before: Fakes C Decision: 1. The application to remove the tree is upheld. 2. The application for compensation is dismissed. Catchwords: TREES [NEIGHBOURS]; damage to property; no practical alternative method of remedying or restraining damage by roots; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Randwick Local Environmental Plan 1998 Category: Principal judgment Parties: APPLICANT E Grant

RESPONDENTS B and S Fletcher Representation: RESPONDENT Mr P Knowles APPLICANT Ms E Grant [litigant in person] File Number(s): 20871 of 2010

Judgment 1This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Kensington against the owners of a tree growing on adjoining land. The respondents were represented by Mr Knowles, barrister; the applicant was self-represented. Mr B Bourke, Tree Management Officer from Randwick Council attended the hearing. 2The applicant is seeking orders for the removal of a large Cinnamomum camphora (Camphor Laurel) growing on the respondents' property. These orders are sought on the basis that the tree has caused damage to a concrete path, a brick retaining wall adjacent to the tree and to the timber dividing fence. She also contends that as the damaged path is the only external access to the rear and side of her property, its current condition creates a tripping hazard and therefore there is a risk of injury. [It is noted that at the hearing the applicant also raised the issue of damage to a wall of the house however this is not specifically listed in the application but is referred to in correspondence and reports attached to the application.] 3The applicant is also seeking compensation of an estimated sum of $5269. This figure includes reimbursement for an arborist's report, the removal of roots from under the damaged concrete path, the removal and reinstatement of the concrete path and brick retaining wall, and repair of the fence after the removal of the tree and roots. 4The respondents do not dispute the fact that the root system has caused damage to the applicant's property however they do not wish to remove the tree as they value it for the privacy, noise buffering and shade it provides to the upper storey of their dwelling. They also contend that the tree contributes to the streetscape and to their property. While accepting the tree has caused damage, the respondents contest the payment of any compensation for the damage but propose alternative arrangements for the making good of the path and to which they would contribute $3000. 5The tree is a mature, healthy specimen with no obvious structural defects growing on the northern side boundary of the respondents' property. The tree is in excess of 20m high. The tree consists of two main stems. An arborist engaged by the respondents estimates one stem to be about 700 mm in diameter at breast height (DBH) and the other to have a DBH of about 400 mm. A portion of the lower part of the trunk is located on the applicant's land however the tree is clearly substantially on the respondents' land. 6The respondents' property is listed as a local heritage item in the Randwick Local Environmental Plan 1998 . However, the tree does not form part of the description.