Walker v Gribble [2016] NSWLEC 1645

Land and Environment Court New South Wales

Medium Neutral Citation: Walker v Gribble [2016] NSWLEC 1645 Hearing dates: 30 August 2016 Date of orders: 06 December 2016 Decision date: 06 December 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 28. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; driveway; trees not the only cause of damage; repairs; apportionment of costs. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Category: Principal judgment Parties: Leslie Walker (Applicant) Rachael Gribble (Respondent) Representation: Solicitors: Kerry Williams, A C Knibb Kaine & Associates (Applicant) Mark Cottom, HWL Ebsworth Lawyers (Respondent) File Number(s): 147931 of 2016

Judgment

Background 1. The long battle-axe driveway that leads to Mr Walker's Warrawee house was laid many years ago. Its bitumen surface is now cracked in many places. Mr Walker ('the applicant') is elderly and is concerned that he may trip on the rough surface, having already done so. 2. Trees close to the driveway are on various properties along its length. Ms Gribble ('the respondent') owns the property to Mr Walker's east. Around her tennis court is a row of Leighton Green Cypress trees, 23 of which grow between the tennis court and the common boundary, less than 2 metres from the section of Mr Walker's driveway near his dwelling. 3. Mr Walker wants to replace his driveway, and wants Ms Gribble to pay for most of the cost of repairing that section of the driveway that is adjacent to her trees. He says roots of her trees have damaged this part of the driveway. He has dug one hole next to the driveway to expose a woody root. In August 2015 he obtained a report from Tristan Bradshaw, of Bradshaw Tree Services, who recommended that all roots be cut along the driveway, that a root barrier be installed, that the driveway be replaced once roots are removed, and that the trees be pruned to reduce their height to 7 or 8 metres. The report does not meet the Court's requirements for expert evidence, but was submitted by Mr Walker as supporting evidence. 4. Mr Walker has applied to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders that reflect Mr Bradshaw's recommendations: 1. The Respondent reduce the height of the trees by some seven metres. 2. The Respondent dig a trench 30 cm deep and insert root inhibiter to prevent further damage. 3. The Respondent cut and remove all roots that have cracked the surface of the driveway. 4. The Respondent repair the driveway where cracked using similar materials. 1. Ms Gribble argues that Mr Walker has not demonstrated that roots from her trees have caused damage to his driveway.