Pearson v Humphrey & anor [2013] NSWLEC 1204

Land and Environment Court New South Wales

Medium Neutral Citation: Pearson v Humphrey & anor [2013] NSWLEC 1204 Hearing dates: 24 October 2013 Decision date: 24 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; tree removal ordered; compensation for damage to tiled floor Catchwords: TREES [NEIGHBOURS] Damage to property; injury; compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ms K Pearson (Applicant) Mr G and Ms S Humphrey (Respondents) Representation: Applicant: Ms K Pearson (Litigant in person) Respondents: Mr G and Ms S Humphrey (Litigants in person) File Number(s): 20581 of 2013

Judgment 1COMMISSIONER: The applicant in this matter owns a locally listed heritage property in Taree. She has applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal or maintenance of two trees growing on an adjoining property and for compensation for a quoted sum of $37,418 for damage alleged to have been caused by the trees. 2The trees are both mature specimens of Phoenix canariensis (Canary Island Date Palm) and Photinia sp. They are growing in the rear yard of the respondents' property close to the common boundary fence between the parties' properties. 3The applicant contends that roots from the Date Palm have: * Deflected and bowed the dividing fence; * Created an extensive root mat through the adjacent lawn; * Caused cracking of the western wall of the toilet; * Lifted and cracked internal floor tiles in the living room and on the toilet and laundry steps; and * Grown under the house footings and piers. 4She is concerned that the roots may cause future damage to the footings and sewer pipes and that they may become pathways for the incursion of pests into other parts of the house. Other concerns arise from the damage that may be caused to landscaping and the fence should the tree be removed. 5In regards to the Photinia, the applicant is concerned that roots from the tree may destabilise the concrete plinth on which the external hot water system sits and that foliage from the tree, growing close to the chimney, may be a fire risk. 6The injury concerns arise from the sharp spines at the base of the palm fronds. On two occasions these have led to medical treatment for infections arising from puncture wounds. 7The respondents have agreed to remove the trees, as they too are concerned about the sharp spines on the palm and an allergic reaction of a family member to the flowers of the Photinia. The parties informed me that council approval is not required.