Wei v Borello & ors [2016] NSWLEC 1003

Land and Environment Court New South Wales

Medium Neutral Citation: Wei v Borello & ors [2016] NSWLEC 1003 Hearing dates: 24 November 2015 Date of orders: 05 January 2016 Decision date: 05 January 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury; nexus not found between trees and damage; application dismissed. 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: Quing Wei (Applicant) Domenico Borello (First Respondent) Francesca Borello (Second Respondent) Rocco Borello (Third Respondent) Gracell Gallo (nee Borello) (Fourth Respondent) Representation: Quing Wei, litigant in person (Applicant) Mr S Nasti, solicitor (Respondents) File Number(s): 20816 of 2015

Judgment

Background 1. Mrs Wei ('the applicant') has owned her property in Fairfield since 1994. She runs a childcare centre on the property. Around 1995 she had brick walls constructed around the boundaries: there is a wall along the side boundary next to a side street; there are walls along the common boundaries with properties to her south and east. 2. Members of the Borello family ('the respondents') have owned the property to her south since 1999. On their property near their common boundary with Mrs Wei's property are two trees: a fig tree and a murraya. Both trees are approximately one metre from the boundary and their canopies overhang the brick wall. The brick wall is approximately 2.5 metres tall near the trees. 3. Mrs Wei became concerned about the trees some years ago. She is concerned that they overhang her property and that berries from the trees might be eaten by children in her care, and that their branches scratch the arms and faces of children in her care. She also noticed some years ago a crack in the brick wall in the vicinity of the fig tree. Over time the crack became more severe and Mrs Wei says she approached her neighbours to ask them to do something about this. She also asked them to do something about the overhanging branches, because the person she had engaged for some years to trim overhanging branches said the job was now too big for him. Unable to reach a resolution with the respondents about either the branches or the wall, Mrs Wei has applied to the Land and Environment Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for removal of both trees, compensation and repair to the wall. 4. Fairfield Council ('Council') was contacted about the condition of the wall some time ago. After a Council officer inspected the fence, Council placed an order stating that both property owners must install protective fencing in their properties at a distance no closer to the wall than the wall's height to prevent people entering the zone in which they might be injured should the wall fall. Clearly Council is of the view that the wall is a safety issue. Both property owners have erected such fencing. The Council order says that the fencing must stay in place until a structural engineer deems the wall to be safe. 5. Details of the compensation Mrs Wei seeks were contradictory in various sections of her application, so at the onsite hearing she explained exactly what compensation she seeks: * Compensation for the cost of trimming the trees for the last seven years. * Compensation for temporary repair works carried out to the wall. * Compensation for an extra staff member required in the childcare centre during periods when she has been occupied with preparing her application. * Compensation for $52,000 for lost earnings she says are due to a family with three children deciding not to use the centre when they saw the condition of the wall. * Compensation for fixing the ground in the playground area of her childcare centre, which she says is uneven due to root growth. * Compensation of an unknown amount for the cost of repairing or replacing the wall. 1. Mr Nasti, acting for the respondents, filed a subpoena for Council to provide any relevant documents for the property. Of particular interest to the respondents was information regarding ground levels within Mrs Wei's property and any construction requirements for the brick wall along the boundary. 2. Mrs Wei has provided no expert evidence regarding the wall, the trees or any damage. The respondents have provided an arborist's report and an engineer's report. Despite being commissioned specifically to assist this hearing, the arborist report does not comply with the directions for expert evidence provided to the parties. Mr Holden, arborist, has not acknowledge in his report that he has "read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005" (Direction 14). Mr Russo, engineer, has complied with the Court's directions. Mr Russo attended the hearing to provide evidence and to assist the Court to reach a conclusion regarding the wall.