McVicker v Finlay & anor [2016] NSWLEC 1019

Land and Environment Court New South Wales

Medium Neutral Citation: McVicker v Finlay & anor [2016] NSWLEC 1019 Hearing dates: 21 January 2016 Date of orders: 21 January 2016 Decision date: 21 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; compensation/ rectification; discretionary matters; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mr M McVicker (Applicant) Mr P & Ms R Finlay (Respondents) Representation: Applicant: Mr M McVicker (Litigant in person) Respondent: Mr K Finlay (Agent) File Number(s): 20972 of 2015

Judgment 1. COMMISSIONER: The applicant owns a property in Berkeley Vale. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the repair of structural damage to his dwelling, the replacement of the concrete driveway and the reconstruction and realignment of his carport including the replacement of guttering; all at the respondents' expense. 2. The applicant contends that the respondents' tree caused the damage; hence the orders sought. 3. The tree the subject of the application was removed by the respondents in December 2015. The species is unknown however from the photograph in the application claim form it may have been a Harpephyllum caffrum (Kaffir Plum). The photograph indicates that it was a reasonably mature specimen growing on the respondents' property within 1m of the dividing fence between the parties' properties and which partly overhung the applicant's carport. 4. Although the tree has been removed, it is still a tree to which the Part 2 applies – section 4(4) of the Act. 5. The applicant has obtained an estimate of $10,000 for the replacement of the driveway and a quote of $2,250 for the repair of the carport. 6. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 2. The application claim form only deals with the alleged damage however, during the hearing the applicant mentioned his concerns about the safety of members of his family, presumably the risk of tripping on sections of displaced driveway. 3. As the tree has been removed there is no risk of future damage. If either of the other relevant tests is met the Court's jurisdiction to make orders under s 9 is engaged. 4. In large part, the applicant relies on the advice of Mr G Johnson from a firm specialising in underpinning and sub-floor areas. In his letter dated 1 September 2015 he states [capitalization, greetings and sign off omitted]: I inspected damage to the driveway at no. '97' and also to the front south-west corner of your home where some cracking has occurred due to tree root invasion. The driveway has 'drastically' lifted and cracked due to the tree roots from the Tree on your neighbour's property, number 99 …. This Damage is a direct consequence of the 'tree at number 99'. ● Rectification will cost up to $10,000.00 to complete and restore driveway & home to its original position prior to the invasion of tree roots. ● Also, the offending tree will need to be 'removed' or an 'extensive' root barrier needs to be installed along this area to stop the tree sending out more roots towards your home and causing further damage. ● Removal and replacement of the damaged driveway caused by the tree. ● Compensation for the works should be sort after from the owner of the offending tree on the neighbouring property. 1. There are three elements of alleged damage.