Nolan v Chen [2015] NSWLEC 1441

Land and Environment Court New South Wales

Medium Neutral Citation: Nolan v Chen [2015] NSWLEC 1441 Hearing dates: 29 October 2015 Date of orders: 29 October 2015 Decision date: 29 October 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 17. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); driveway damage caused by tree roots; orders for tree removal; damage mainly predates respondent's ownership; compensation not ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Philip Nolan (Applicant) Taylor Chen (Respondent) Representation: Philip Nolan, litigant in person (Applicant) Taylor Chen, litigant in person (Respondent) File Number(s): 20685 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. In leafy Normanhurst tall Blue Gums dominate the local residential landscape around Mr Nolan's property, where he has lived for the last 37 years. Between his brick dwelling, built in the 1960s, and his northern boundary a concrete driveway provides vehicular access to the garage at the back of his property. Mr Nolan ('the applicant') is sure that the driveway was constructed prior to 1970. On the other side of his northern boundary, on Mr Chen's property, stands a Sydney Blue Gum (Eucalyptus saligna) more than 20 metres tall, its base against the boundary fence. 2. Mr Chen ('the respondent') has owned his property for less than a year, since December 2014. Next to the tree, Mr Nolan's driveway is significantly raised and cracked. The crack runs across the driveway to his dwelling, meeting with the brick wall that encloses a downstairs rumpus room or office. The room's floor level is lower than the exterior ground level at this point. In April of this year during torrential rains, water entered the rumpus room apparently through the wall at approximately the point where the driveway crack meets it. Water spread around the room causing damage to some items. 3. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') Mr Nolan has applied to the Land and Environment Court seeking orders for removal of the tree and for compensation for some of the cost of repair works to the driveway. He says he understands that some damage occurred prior to Mr Chen's ownership of his property, but contends that 25% of the quoted $7,400 would be a reasonable contribution from Mr Chen. Mr Nolan also seeks orders for costs of making his application, which Commissioners of the Court do not have the power to award. He may file a Notice of Motion for this element to be heard by the Registrar or a Judge of the Court if he wishes.