Freeman v Dillon [2012] NSWLEC 1057

Land and Environment Court New South Wales

Medium Neutral Citation: Freeman v Dillon [2012] NSWLEC 1057 Hearing dates: 14 February 2012 Decision date: 15 March 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application to remove trees upheld in part; applicant to pay the cost of removal and replacement of ten trees Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; consequences of damage caused by the applicant; pre-existing condition of a dwelling Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420 Shagrin v O'Neil [2010] NSWLEC 1368 Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Liang & anor v Marsh & anor [2011] NSWLEC 1026 Barker v Kyriakides [2007] NSWLEC 292 Horn & anor v Latter [2007] NSWLEC 744 Joaquim v Adamson [2009] NSWLEC 1312 Category: Principal judgment Parties: Ms W Freeman (Applicant) Mr H and Mrs J Dillon (Respondents) Representation: Applicant: Ms W Freeman (Litigant in person) Respondents: Mr T Cork (Solicitor) Respondents: McPhee Kelshaw File Number(s): 20875 of 2011

Judgment 1COMMISSIONER: In 2009, Ms Freeman purchased a property towards the western edge of Katoomba. The adjoining property, owned by Mr and Mrs Dillon, contains a number of established trees including a row of several species of conifers along their southern boundary. The Dillons purchased their property in 1990 and have resided there ever since. The majority of the trees were well established when they arrived; it is thought that a number of the trees are at least 43 years old. 2Ms Freeman has applied to the Court, under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), for orders against 44 of the trees closest to her northern boundary. The orders sought are (in summary): (1)Immediate removal of 13 Radiata Pine trees (T1- T13); (2)Immediate removal of any trees which are already touching or are within centimetres of the wooden fence (T14-T44); (3)Permission for a root barrier to be put in place along the entire common]boundary and within the applicant's property; (4)Pruning of live branches and removal of dead wood from 20 trees; (5)Maintenance to start and continue on 11 recently planted trees; (6)Checks to be put in place to prevent the future planting on the respondents' land of potentially large-growing trees within 5m of the applicant's property; (7)Advice to be provided to the respondents with regard to planting future trees in any position along the common boundary; (8)That the respondents bear the felling and stump removal costs of trees that the Court decides should be removed. 3Ms Freeman contends that the following damage has been caused to her property by one or more of the trees: * Cracking and displacement of the concrete driveway/ apron in front of the garage and associated problems with the closing of the garage door [roots]; * Cracked and broken roof tiles [falling branches]; * Blocked gutters [leaves]; * Blocked stormwater pipes [roots]; * Pressure on/ damage to a timber fence [trunks and branches]; * Cracking of the external wall of the dwelling/ garage [roots]; * Damage to the internal walls of a laundry/ toilet [roots]; and * Damage to the drainage of the back garden and to the water table [roots]. 4She is also concerned about future damage to the concrete apron, roof tiles, drainage, water table, walls of the dwelling, and both a timber and a wire fence. 5The orders are also sought to prevent injury that might include head injury from falling branches, tripping and slipping hazards posed by encroaching and protruding roots, and injury caused by the collapse of the timber fence due to the pressure of the trees. 6Ms Freeman also contends that in the event of a bushfire in the area all of the trees are likely to cause damage to the house and property, as well as potential injury. Whilst no formal orders are sought for compensation, the application claim form, at questions 14 and 15, states that Ms Freeman would seek up to $500,000 from the Dillons in the event of a bushfire and resulting house damage caused by the neighbouring pines and excessive undergrowth. In this regard, I informed Ms Freeman that it is beyond the Court's jurisdiction to contemplate any orders for future compensation [see Robson v Leischke [2008] NSWLEC 152 at [217]]. 7The Dillons have proposed alternative orders which in summary are that the respondents will organise and pay for the removal of ten trees, identified as T2 - T11 - Pinus radiata in the report of their arborist, Mr Lang. The applicant is to provide reasonable access for the works. Ms Freeman is to reimburse the Dillons the full cost of the removals, and their replacement with a species recommended by Mr Lang, within 14 days of a receipt for the completed works. 8The Dillons contend that these alternative orders are appropriate due to damage to the structural root systems of the nominated trees caused by Ms Freeman's installation of a new storm water system. The trees are now considered to be at a high risk of wind-throw from stronger, more frequently prevailing westerly and south-westerly winds. The Dillon dwelling is the likely target zone should they fail.