Whatham v Ellams & anor [2011] NSWLEC 1382

Land and Environment Court New South Wales

Medium Neutral Citation: Whatham v Ellams & anor [2011] NSWLEC 1382 Hearing dates: 6 December 2011 Decision date: 21 December 2011 Jurisdiction: Class 2 Before: Fakes C Decision: The application is dismissed. Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons, compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr B Whatham (Applicant) Mr J Ellams (First respondent) Ms J Maple (Second respondent) Representation: Mr B Whatham (Applicant in person) Mr B Gelonesi (Solicitor for the Respondents) GP Legal (Respondents) File Number(s): 20812 of 2011

Judgment 1COMMISSIONER: This is an application under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mona Vale against the owners of trees growing on an adjoining property. 2The applicant is seeking the removal of all trees growing along the southern boundary of the respondents' boundary on the basis that they have caused, and will continue to cause, damage to elements of his property. If any replacement planting is to be carried out, the applicant seeks orders for those plants to be limited to species with 'non-invasive' roots and which only grow to fence height; these orders are sought to prevent future damage to drainage pipes. The applicant is also seeking a contribution from the respondents of 50% of the cost of rebuilding a brick retaining wall along the western end of the northern boundary of the applicant's property. The applicant contends the wall has been damaged as a result of roots from the respondents' trees breaching a drainpipe leading to leakage of water, which in turn has led to a failure of mechanical support for the wall. 3The respondents contend that none of the trees on their property have caused any damage to the applicant's property. With respect to the crack in the boundary wall, the respondents state that it was present when they purchased their property and before they planted any of the trees. In their view, the trees make a significant contribution to the natural landscape and scenic value of their property and soften the visual impact of the nearby wall of the applicant's dwelling. 4The trees along the fence are as follows (listed from west to east): T1 - a mature Cootamundra Wattle; T2 - a semi-mature Lillypilly; T3 - a small Grevillea; T4 - small bottlebrush; T5 - semi-mature Callistemon; T6-11 - young Leyland Cypress. There is a mature Koelreuteria sp (Golden Rain Tree) and a young Eucalypt set back some metres from the dividing fence.