Edwards v Lamphee & anor [2012] NSWLEC 1203

Land and Environment Court New South Wales

Medium Neutral Citation: Edwards v Lamphee & anor [2012] NSWLEC 1203 Hearing dates: 26 July 2012 Decision date: 26 July 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed Catchwords: TREES [NEIGHBOURS] - Damage to property; compensation; application dismissed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Gan v Anderson & anor [2008] NSWLEC 1257 Hinde v Anderson and anor [2009] NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr Graham Edwards (Applicant)

Mr Kenneth Lamphee and Mrs Lynette Lamphee (Respondents) Representation: Mr Graham Edwards (Applicant in person)

Mr Graham Kinsey, G. A. Kinsey (Respondents in person) File Number(s): 20304 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: Mr Edwards has lived at his Roselands property since about 1985. At the time he purchased his property there was a Jacaranda tree growing on an adjoining property. Since then Mr Edwards has paid for repair works to a sewer pipe and repair works to his rear boundary fence. He says the damage to these structures was caused by the Jacaranda and has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of the tree to prevent further damage and for compensation for the repair works. He also seeks orders to be reimbursed for the costs of an arborist report, a council tree permit application and Court fees, however Commissioners do not have the power to award costs, so that requires a Notice of Motion to be heard by a Judge should Mr Edwards wish to pursue that. 2Mr and Mrs Lamphee have lived at their property since 1973, at which time the Jacaranda was growing in their property near the rear boundary. They enjoy the benefits offered by the tree and do not wish to remove it. They dispute that the tree has caused damage to Mr Edwards' property. 3Before any orders can be made I must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property. If so satisfied, I must then consider matters set out in s 12 of the Act before making orders as I see fit to remedy, restrain or prevent damage to the applicant's property as a consequence of the tree. 4The hearing took place on site, allowing a view of the tree, the fence and the applicant's property.