Reeve v Evans & anor [2014] NSWLEC 1196

Land and Environment Court New South Wales

Medium Neutral Citation: Reeve v Evans & anor [2014] NSWLEC 1196 Hearing dates: 21 July 2014 Decision date: 19 September 2014 Jurisdiction: Class 2 Before: Galwey AC Durland AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; the Court cannot be satisfied that trees have caused damage; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Andrew Reeve (Applicant) Mark Evans (First Respondent) Yvette Evans (Second Respondent) Representation: Mr A Isaacs (Applicant) Mr T Vernier (Respondent) MCW Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 20183 of 2014

Judgment

The application 1Mr Reeve ("the applicant") owns and resides at a residential property in McGraths Hill in Sydney's outer north-western suburbs. Houses and gardens are well established in the neighbourhood. His front garden slopes gently down to the street, with a concrete driveway at one side. Not far from the driveway, in the neighbouring front garden, is a row of eight palm trees planted close to and along the common boundary. 2Mr Reeve has replaced damaged stormwater pipes on his property. He alleges roots from the neighbouring palm trees caused the damage. He also claims palm roots have damaged his driveway. He has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for the palms to be removed and for compensation for the damage he says they have caused. 3Mr and Mrs Evans ("the respondents") own the neighbouring property where the eight palms grow. They dispute that roots have damaged pipes and the driveway. They say there are other causes of the damage. 4Within the framework of the Trees Act, the Court can make orders to remedy, restrain or prevent damage. This includes orders such as those being sought for compensation and tree removal. Before making orders the Court must, firstly, be satisfied that the trees concerned have caused, are causing or are likely in the near future to cause damage to the applicant's property. Secondly, the Court must consider a range of discretionary matters at s 12 of the Trees Act.