Bennett (as Trustee for Access Family Trust) and anor v McLoughlin [2013] NSWLEC 1259

Land and Environment Court New South Wales

Medium Neutral Citation: Bennett (as Trustee for Access Family Trust) and anor v McLoughlin [2013] NSWLEC 1259 Hearing dates: 11 September, 8 & 15 November 2013 Decision date: 24 December 2013 Jurisdiction: Class 2 Before: Moore SC Galwey AC Decision: 1.The application is dismissed; and 2.The exhibits, other than Exhibit A, are returned. Catchwords: Satisfaction of jurisdictional prerequisites; Presence of damage; Identification of roots; Adequacy of design for construction near a tree Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riordan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: C A Bennett as Trustee for Access Family Trust (First Applicant) S Teh (Second Applicant) B McLoughlin (Respondent) Representation: Second Applicant in person Mr P O'Brien, solicitor N/A (Applicants) Harris & Company (Respondent) File Number(s): 20444 of 2013

Judgment

Introduction 1COMMISSIONERS: In the rear garden of a property on the southern side of a quiet suburban street in Rozelle grows a very large (but not yet fully matured) Wallangarra White Gum, Eucalyptus scoparia (the tree). The tree is approximately 10m high and has a canopy spread of some 10 to 15m. The applicants contend that the roots of this tree have caused and continue to cause damage to their property, the property to the south of that upon which the tree is growing. The nature of the damage is described later in this decision. The applicants and the respondent each engaged experts in tree matters to provide expert evidence in these proceedings. To assist the applicants, they engaged Mr John Ford, a consultant botanist, and, for the owner of the tree, Mr Hugh Taylor, an arborist. They are in agreement about the appropriateness (or otherwise) of such a tree growing in close proximity to dwellings. Mr Ford said in his written statement: From my experience and knowledge, trees of this nature are entirely unsuitable in such close proximity to dwellings, and this case, as close as approximately 3 m from the house at [the applicants' address]. 2Mr Taylor, agreed with this proposition but also said: However the tree is approximately 40 years old and was in situ when the Development Application for the extension and modifications to [the applicants' address] was granted.