Duxbury v Hewitt [2016] NSWLEC 1291

Land and Environment Court New South Wales

Medium Neutral Citation: Duxbury v Hewitt [2016] NSWLEC 1291 Hearing dates: 13 July 2016 Date of orders: 13 July 2016 Decision date: 13 July 2016 Jurisdiction: Class 2 Before: Fakes C Decision: See paragraph [53] Catchwords: TREES [NEIGHBOURS] Damage to property; injury; compensation; insufficient evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hinde v Anderson & anor [2009] NSWLEC 1148 Liang & anor v Marsh & anor [2011] NSWLEC 1026 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Zhang & anor v Long & anor [2007] NSWLEC 632 Category: Principal judgment Parties: Steven Duxbury (Applicant) Gavan Hewitt (Respondent) Representation: Applicant: Mr S Duxbury (Litigant in person) Respondent: Mr G Hewitt (Litigant in person) File Number(s): 152795 of 2016

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Umina Beach against the owner of a Liquidambar tree growing on an adjoining property. 2. The applicant is seeking the following orders (as summarised from the Class 2 application): 1. Removal of the liquidambar (including poisoning of roots). 2. Repair of sewer main shaft. 3. Removal and replacement of concrete associated with (2). 4. Replacement of two sections of concrete driveway. 5. Replacement of gate track and motor. 6. Reimbursement for payments by the applicant for CCTV inspection of sewer, lawnmower blades. 7. Reimbursement of the application filing fee. 1. In regards to proposed order (7), Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 2. The claim for compensation/ rectification costs is for a sum of $4092.50 comprising: * $110 sewer inspection with CCTV * $478 Sewer repairs (quote) * $2880 Driveway repairs (quote) * $150 Lawnmower blades * $75 Gate track * $399 Gate motor 1. The orders are sought on the basis that the tree has caused, and could in the future cause, damage to the applicant's property and has caused and could continue to cause, injury to anyone on the applicants' land or on public land. 2. Apart from the items of damage listed above, the applicant also claims that the tree has damaged the guttering of his house and cars parked in the driveway. He is also concerned that the powerline to his home could fall or break should a branch fall onto it. 3. The respondent maintains that nothing need be done to the tree which is healthy and valued for the shade it affords his property. He submits that the tree was well established when the applicant purchased his property and that he has never received any complaints from previous neighbours or tenants of his property. The respondent states that the concrete driveway was already damaged when the applicant purchased his property and that overall there is no evidence that the tree has caused the problems alleged by the applicant. He disputes the other elements of the claim, especially, given he is a greenkeeper, the claims about the mower blades.