Chapman v Stevens Holdings Pty Ltd [2016] NSWLEC 1128

Land and Environment Court New South Wales

Medium Neutral Citation: Chapman v Stevens Holdings Pty Ltd [2016] NSWLEC 1128 Hearing dates: 30 March 2016 Date of orders: 07 April 2016 Decision date: 07 April 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted – see [38] Catchwords: TREES [NEIGHBOURS]: Risk of injury to occupants of respondent's property as a consequence of the actions of the applicant; applicant to pay for removal and replacement Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Act 2005 Category: Principal judgment Parties: Gregory John Chapman (Applicant) Stevens Holdings Pty Ltd (Respondent) Representation: Applicant: Mr M Magennis (Solicitor) Respondent: Mr D Burgin (Solicitor)

Solicitors: Applicant: Searson Shannon & Co. Pty Ltd Respondent: Stevens Group File Number(s): 21191 of 2015

Judgment 1. COMMISSIONER: Mr Chapman, the applicant in these proceedings, owns a block of land on Hastings River Drive, Port Macquarie. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of eleven trees growing on the respondent's property. 2. The orders are sought on the basis that the trees pose a risk of injury to anyone on the respondent's property. The respondent's property is a caravan park on which there are a significant number of cabins. The orders filed with the Class 2 Application request that the tree removal be at the respondent's expense. Damage to property is not pressed, as the applicant's land is vacant. 3. The respondent does not wish to remove the trees but should the Court make orders for their removal, the respondent has filed alternative orders in the following [summarised] terms: 1. The applicant to pay the cost of: 1. any tree removal ordered by the Court, inclusive of stump grinding, excavator hire, root barriers. 2. Replanting any replacement tree ordered by the Court as set out in the quotation of Woodvale Tree Services [supply of 800 litre trees @ $1,860.00 each plus freight; plus planting and maintenance]. 3. Roadway repair and part replacement as set out in the quotation and report prepared by Robson Civil Projects. 1. The applicant pay the respondent the sum of $7,638.95; being the cost of the report from Terras Landscape Architects. 2. The applicant to pay the respondent compensation for damage to the respondent's trees having regard to the valuation included in the report by Terras Landscape Architects. 1. In regards to the respondent's proposed order #2, Commissioners of the Court do not have the power to order payment of legal costs, costs of expert reports, application fees and so on. Should either party wish to press an order for costs within the meaning of the Uniform Civil Procedure Act 2005, a separate Notice of Motion can be filed which would then be heard by the Registrar or a Judge of the Land and Environment Court. 2. In respect of the respondent's proposed order #3, s 7 of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant's land, or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land (the respondent's land). The Court has no jurisdiction under the Trees Act to award compensation for damage to property on a respondent's land, which in this case comprises the trees the subject of the application [being property on the respondent's land]. 3. During the on-site hearing, Mr Chapman agreed to the removal of the four native trees identified in the respondent's arborist's report as well as any other trees specified by the Court. He objected to the proposed size of the replacement trees as well as to the respondent's proposed orders 1c and 3. 4. The trees in question are eleven of the trees growing along the eastern boundary of the respondent's property within 1-2 m of the common boundary fence. The row extends to the south beyond the common boundary and past a storage complex to the south of the applicant's land. There are other smaller trees in the row adjoining the applicant's property however they have not been identified for removal. The nominated trees are identified as: * T1-T4 – Cinnamomum camphora – Camphor Laurel * T5 – Eucalyptus x patentinervis – Bastard Mahogany * T6 – T7 – Camphor Laurel * T8 - Eucalyptus x patentinervis – Bastard Mahogany * T9 – Camphor Laurel * T10 – Eucalyptus robusta – Swamp Mahogany * T11 – Casuarina cunninghamiana – River Oak 1. All are mature trees and all have been heavily pruned on the eastern side, the side adjoining the applicant's property.