Ardagh v Ellston [2012] NSWLEC 1235

Land and Environment Court New South Wales

Medium Neutral Citation: Ardagh v Ellston [2012] NSWLEC 1235 Hearing dates: 21 August 2012 Decision date: 23 August 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Removal of two trees on the basis of preventing future damage; Application to remove trees under Part 2A dismissed. Catchwords: TREES [NEIGHBOURS] Damage to property - fig tree roots; adequacy of evidence and sufficiency of damage. Hedges - obstruction of sunlight and views; do the remaining trees constitute a hedge for the purpose of the Act; influence of other factors on views and sunlight. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Guardianship Act 1987 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Riachi v Kerslake [2010] NSWLEC 1153 Holden v Smith [2011] NSWLEC 1066 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Category: Principal judgment Parties: Mr Robert Ardagh (Applicant) Mr Harry Peter Ellston (Respondent) Representation: Applicant: Mr Robert Ardagh (Litigant in person) Respondent: Mr Peter Ellston (Agent/ Tutor) File Number(s): 20569 of 2012

Judgment 1COMMISSIONER:This is an application made under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mr Ardagh against Mr Ellston, the owner of a number of trees growing on an adjoining property. The properties are located in Terrigal. 2Mr Ardagh claims that Ficus benjamina (Weeping Fig) trees near the western boundary of Mr Ellston's property have caused and will continue to cause damage to his property. He also contends that most of the trees were originally planted as a hedge and the remaining trees now severely obstruct sunlight to windows of his dwelling and views from his dwelling. 3Mr Ardagh seeks orders for the removal of seven nominated Fig trees, the removal of roots from his property, as well as remediation of his land, the dividing fence and driveway. He also seeks compensation for the application filing fee. 4With respect to the last order, Commissioners do not have the jurisdiction to award such costs. A separate Notice of Motion must be lodged for the matter to be heard by a Judge or Registrar of the Court. 5Mr Ellston was unable to attend the hearing for medical reasons. His son, the designated Tutor in these proceedings and his appointed financial manager under the Guardianship Act 1987 represented him. Mr Ellston jnr does not oppose some tree removal but would prefer any removals to be staged for financial reasons and to minimise the stress it may cause his father. 6The hearing was held on site and commenced with an inspection of the trees on the respondent's land. The alleged damage and loss of views and sunlight were assessed from the applicant's land and dwelling.