Daniels v Wyner & anor [2015] NSWLEC 1250

Land and Environment Court New South Wales

Medium Neutral Citation: Daniels v Wyner & anor [2015] NSWLEC 1250 Hearing dates: 23 June 2015 Date of orders: 08 July 2015 Decision date: 08 July 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 30. Catchwords: Trees (disputes between neighbours); damage; debris; application upheld; orders differ from the orders sought; orders for pruning and cabling. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Category: Principal judgment Parties: Peter Daniels (Applicant) Paul Wyner (First Respondent) Martine Wyner (Second Respondent) Representation: Peter Daniels, litigant in person (Applicant)

Solicitors: Mr Mark Driscoll, BCP Lawyers & Consultants (Respondents) File Number(s): 20278 of 2015

Judgment

Background 1. Since 1979, Mr Daniels ('the applicant') has lived at his Cromer property in Sydney's northern beaches region. Soon after he began occupying his property he added some retaining walls in his back yard so that he could establish some level garden beds for growing vegetables and other plants. 2. From its street frontage, Mr Daniels' property slopes down to the north where it shares a common boundary with the Wyners' property. The Wyners ('the respondents') have owned and lived at their property for approximately two years. In their rear garden, not far from this common boundary, stands a mature Liquidamber tree ('the tree'). The tree's broad crown spreads over the back yards of both properties; its roots spread throughout the soil within both properties. It is now winter and the leaves of this deciduous tree lie on the ground. 3. A few years ago Mr Daniels noticed tree roots near the back wall of his garage and a crack in the garage's concrete slab floor. He also noticed suckers growing from roots within his garden. And he noticed his retaining walls had been displaced. In 2007 and 2010 he also had a plumber clear his sewer pipe, which runs across the rear of his property close to the common boundary and the tree. According to Mr Daniels, tree roots had blocked the pipe. For these reasons 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 Wyners to remove the tree and for them to pay him $8,891. This amount is based on: the plumber's costs for clearing pipes ($619 in total); the cost of cleaning up leaves and debris in his garden last year ($1,200); the costs of a report by a consulting arborist ($715) and a report by a consulting engineer ($1,000); and a quote for replacing sewer pipes ($5,357). The ordering of compensation is within the power of Commissioners of the Court, but costs such as application fees and the costs of expert reports are not. If Mr Daniels wishes to press for costs of reports he will have to file a Notice of Motion for that matter to be heard by a Judge or the Registrar of the Court. All other matters for which he seeks action are within my reach. 4. The Wyners appreciate the tree's amenity, the shade it provides and its contribution to privacy. They do not wish to remove it. The Wyners also commissioned an engineer and an arborist to prepare expert reports.