Yin v D'Hondt & anor [2014] NSWLEC 1040

Land and Environment Court New South Wales

Medium Neutral Citation: Yin v D'Hondt & anor [2014] NSWLEC 1040 Hearing dates: 28 February 2014 Decision date: 06 March 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see paragraph [81] Catchwords: TREES [NEIGHBOURS] Damage to property; injury; notice given to respondents Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Burling v Nolan [2012] NSWLEC 1241, Ding & anor v Phillips [2008] NSWLEC 1268 Forster & anor v St Vincent De Paul [2012] NSWLEC1227 Goldman & anor v Malane [2012] NSWLEC 1234 Hinde v Anderson & anor [2009] NSWLEC 1148 Holborow v Measures [2012] NSWLEC 1101 Knox v Love (No.3) [2012] NSWLEC 1158 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Wazrin Pty Ltd v Pearson [2010] NSWLEC 1020 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Ms P Yin (Applicant) Mr C and Mrs M D'Hondt (Respondents) Representation: Applicant: Ms P Yin (Litigant in person) Respondents: Mr J Westlake (Agent) File Number(s): 20939 of 2013

Judgment 1COMMISSIONER: The applicant in these proceedings purchased her Killarney Heights property in 1999. At that time there was a large established Eucalypt growing at the rear of the respondents' property, close to the common side boundary. The respondents purchased their property in 2007. 2The applicant contends that she had few if any problems with the tree until 2011 when she noticed more dead branches falling from it. She maintains that this followed the installation of an above ground pool in the respondents' backyard, quite close to the tree. In 2012 she observed a concrete path in her back garden had cracked. In September 2013 after removing some Privet trees from her back garden, she found two large roots of the Eucalypt on her property. 3The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for a number of orders. These are summarised from the application form as follows: * Removal of the tree and its roots; * Reinstatement of the wire boundary fence and its footings; * Repair of a block wall at the rear of the applicant's property; * Reappointment of a damaged garden bed and its preparation for planting; * Levelling and returfing of land affected by the tree and its roots; * Removal and replacement of a damaged concrete path; and * Removal of an encroaching planter box. All work is to be carried out at the respondents' expense. The applicant's estimate for the remediation works is $7999. Mr David Ferrier, the applicant's architect, prepared the estimate and prepared detailed plans of the site and the damage. 4The applicant contends these orders are necessary because of damage caused by the tree and the potential for injury as a consequence of falling branches or tripping hazards. As I understand the application, she is also concerned about whole tree failure. 5The tree is described in the application, in early correspondence, and by the applicant's arborist, Mr David Watts, as a Eucalyptus microcorys (Tallowwood). The respondents' arborist, Mr Guy Paroissien, has correctly identified it as a Eucalyptus botryoides (Southern Mahogany or Bangalay). 6The tree is estimated to be 22m tall. It comprises three codominant leaders which arise from very close to ground level. The tree is healthy with a normal percentage of dead wood.