Walker v Algie & anor [2012] NSWLEC 1185

Land and Environment Court New South Wales

Medium Neutral Citation: Walker v Algie & anor [2012] NSWLEC 1185 Hearing dates: 10 July 2012 Decision date: 10 July 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: Application upheld in part. Tree to be removed at the respondents' expense. Respondents to carry out repair works to applicant's property. Applicant to provide access for works. Cost of repair works to be divided between the parties. Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; removal ordered; repairs to applicant's property; compensation ordered. Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Timmins v Park [2011] NSWLEC 1308 Category: Principal judgment Parties: Mrs Irene Walker (Applicant)

Mr James Algie and Mrs Jennifer Algie (Respondents) Representation: Ms Linda Walker (Daughter, agent for the applicant)

Mr James Algie and Mrs Jennifer Algie (Respondents in person) File Number(s): 20387 of 2012

Judgment 1COMMISSIONER: A Hills Weeping Fig grows in the front garden of the Algies' property in a quiet suburban street in Keiraville. It is less than 30 cm from the fence along the common boundary with their neighbour, Mrs Walker. Mrs Walker is concerned that roots from the tree have damaged her driveway and outdoor tiled, paved and concreted areas. She is also concerned that roots may damage her dwelling. She has applied to the Court under the Trees (Disputes Between Neighbours Act) 2006 to have roots removed, damage on her property repaired and for the tree to be removed if that is necessary to prevent further damage. She sought orders for a limb to be removed from the tree but that those works have been done. She also seeks costs of reports - an arborist report and an engineering report. Commissioners do not have the power to award costs so that would require a Notice of Motion to be heard by a Judge. 2The Algies concede that roots from their tree have caused damage. They wish to prevent further damage and are willing to pay for repairs of damage caused by roots of their tree, to a reasonable extent, based on their view that they were only notified in November 2011 of any root issues (although Mrs Walker's view is that they were notified three years ago). 3The court must determine the following: * Has the tree caused damage to Mrs Walker's property? * What is the cost of repairing the damage? * How should that cost be apportioned? * What is required to prevent further damage?