Kamfam Pty Ltd v Robertson [2012] NSWLEC 1150

Land and Environment Court New South Wales

Medium Neutral Citation: Kamfam Pty Ltd v Robertson [2012] NSWLEC 1150 Hearing dates: 7 May 2012 Decision date: 06 June 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; rectification works ordered; compensation for water damage refused; tree removal refused; pruning ordered Catchwords: TREES [NEIGHBOURS] Damage to property; compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 Inbari & anor v Rankin [2010] NSWLEC 1236, Lazarus v Le [2010] NSWLEC 1118 McCallum v Riordan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Zangari v Miller (No 2) [2010] NSWLEC 1093. Category: Principal judgment Parties: Kamfam Pty Lts (Applicant) P and A Robertson (Respondents) Representation: Applicant: Mrs W Fisher (Agent/owner) Respondent: Ms M Bova (Solicitor) Solicitors Respondent: Marks Griffiths & Bova Solicitors File Number(s): 21137 of 2011

Judgment 1COMMISSIONER: This is an application under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Narrabeen against the owners of a Camphor Laurel tree growing on an adjoining property. 2The applicant is seeking orders for removal of all parts of the tree, killing of all roots growing on their property, prevention of any regrowth of any part of the tree, and compensation for damage to property claimed to be caused by the tree. In the event that the tree is not removed, the applicant seeks orders for the ongoing maintenance or compensation for clearing excessive leaf litter and the cost of installing larger roof flashings. These orders are sought on the basis that the tree has caused damage to the applicant's property and could cause injury to any person. 3Orders are also sought for compensation for lost rent while repairs were made to the applicant's dwelling during September and October 2011 as well as reimbursement of the costs of the application and reports associated with the making of the application. 4With respect to costs, Commissioners do not have the jurisdiction to award such costs; a separate application by way of a Notice of Motion must be made. Costs hearings are heard by the Registrar or a Judge of the Court. 5In regards to compensation for lost rent, this is beyond the Court's power under s 9 of the Act. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [217] considers the Court's powers under s 9 of the Act in regards to what orders can be made. In part His Honour states: 217...The Court may make an order to "remedy damage to property" (s9(1)) and this may include making an order requiring the payment of compensation "for damage to property" (s 9(2)(i)). An order requiring payment of the compensation for economic loss that is consequential on damage to property is not an order requiring payment of compensation "for damage to property" and it does not remedy "damage to property"....