MacPhail & anor v Ware & anor [2012] NSWLEC 1230

Land and Environment Court New South Wales

Medium Neutral Citation: MacPhail & anor v Ware & anor [2012] NSWLEC 1230 Hearing dates: 15 August 2012 Decision date: 17 August 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; trees that have been the subject of a previous application; have the circumstances changed; evidence is not "fresh evidence"; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 MacPhail v Ware [2008] NSWLEC 1213 McCallum v Riordan & Anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Mr Robert MacPhail and Mrs Gillian MacPhail (Applicants)

Mr Kenneth Ware and Mrs Robyn Ware (Respondent) Representation: Mr Robert MacPhail and Mrs Gillian MacPhail (Litigants in Person) (Applicants) Mr Kenneth Ware and Mrs Robyn Ware (Litigants in Person) (Respondent) File Number(s): 20454 of 2012

Judgment 1COMMISSIONER: This application, made under the Trees (Disputes Between Neighbours) Act 2006 ("the Act") concerns trees and damage that were the subject of a previous application before the Court, as well as other trees that were not the subject of that application. 2Mr and Mrs MacPhail own and live on their Illawong property, which has a battleaxe formation. Their dwelling is accessed via a driveway that, for its approximately 60-m length, runs alongside the common boundary with Mr and Mrs Wares' property. 3The MacPhails applied to the Court in 2008, under the Act, seeking orders regarding three trees and damage caused by those trees. The judgment (MacPhail v Ware [2008] NSWLEC 1213) of Moore C and Thyer AC included orders for removal of a tree and payment of some compensation. That judgment was included as evidence by the applicants. 4The MacPhails now seek orders for two of those trees again, as well as for eight additional trees. The written application did not include a clear description of orders sought, so the MacPhails were asked to clarify these during the hearing, the outcome of which is the following list (I have added tree numbering for ease of reference): * Removal of a Jacaranda (T1) to prevent damage to the driveway; * Pruning of three conifers (T2-T5) that overhang the boundary to prevent debris falling onto their property; * Removal of a Fiddlewood (T6) to prevent damage to the driveway; * Removal of all the roots on their property of a Liquidamber (T7) to prevent damage to the driveway, and compensation for damage to the driveway; * Removal of a Golden Cypress (T8) to prevent damage to the driveway, and compensation for damage to the driveway; and * Removal of two palms (T9 and T10) to prevent debris falling onto their property and to prevent injury. 5The MacPhails do not seek orders from the Court regarding the remaining stumps of a Eucalypt and a Hakea, trees that have been otherwise removed. 6The Wares wish to retain all their trees, saying they provide privacy, amenity and habitat. 7The MacPhails provided expert evidence, being a "Statement of Evidence" by Paul Laverty, of Accord Tree Consultants, dated November 2011. That statement includes a report by John Ford, Consultant Botanist, identifying two root samples. Mr Laverty appeared at the hearing to provide expert evidence. 8At the outset of the hearing the Wares expressed concern that they were not notified that Mr Laverty would be providing evidence at the hearing. They say that, had they been aware of this, they would have brought an arborist to the hearing also. Direction 15 from the Directions hearing of 19 June 2012 states that a party requiring an expert witness for cross-examination at the hearing is to provide 5 working days' notice. In my view this is for the purpose of enabling that witness to be informed of their required attendance. Certainly the Wares were not deprived of an opportunity to provide expert evidence, as their obligation at Direction 9 was to file and serve any expert reports by 16 July 2012. They have not filed any such reports. I note their concerns although I do not see that they have been disadvantaged in any way. 9There have been issues between the parties regarding property access for the purpose of pruning or maintaining trees. These are not relevant to my decision.