Lyne v Lloyd [2017] NSWLEC 1111

Land and Environment Court New South Wales

Medium Neutral Citation: Lyne v Lloyd [2017] NSWLEC 1111 Hearing dates: 2 March 2017 Date of orders: 02 March 2017 Decision date: 02 March 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [26] Catchwords: TREES [NEIGHBOURS] Damage to property; further damage likely; removal ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Fraser Lyne (Applicant) Christine Lloyd (Respondent) Representation: Applicant: Fraser Lyne (Litigant in person) Respondent: Christine Lloyd (Litigant in person) File Number(s): 367085 of 2016

Judgment 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two trees growing on the adjoining property as well as rectification of damage property to its original state. 2. The orders are sought on the applicant's contention that the roots of the trees are causing damage to property on his land, the paved pool surround and a drainage pipe behind a retaining wall. 3. The applicant is also seeking reimbursement for the costs associated with DNA testing of roots as well as the court filing fee. In regards to this element of the claim, 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. 4. The respondent accepts that she is responsible for the trees on her property. Her main contention is that all she sought from the applicant was a report from an AQF level 5 Arborist but this was not forthcoming. 5. In applications under s 7 Part 2 of the Trees Act, there are a number of jurisdictional tests that must be satisfied before the Court's powers to make orders under s 9 are engaged. 6. I am satisfied that the trees are wholly on the respondent's adjoining property. 7. I am also satisfied that s 10(1)(a) is met and there has been a reasonable attempt to reach an agreement. 8. 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. Injury is not pressed. 2. 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…". 3. The trees the subjects of the application are a Ficus microcarpa (Fig) and a Cupressus sp. (Cypress). They are wholly on the respondent's land and within about 1m of the common side, rear boundary. The Cypress is a mature specimen in average condition located close to the north-eastern corner of the respondent's property. The Fig is a healthy and vigorous semi-mature individual. 4. Relevantly, the applicant purchased his Port Macquarie property in June/July 2015 some 15 months or so after the respondent purchased her property. The trees were well established when the parties occupied their properties. 5. According to the respondent, on advice from Port Macquarie – Hastings Council, both dwellings date from about 1997 and the applicant's pool was installed in about 2003. The pool surround is paved with clay pavers. 6. According to oral evidence given by the applicant's father who resides on the property, in about August/ September 2016 he noticed several of the pavers had lifted. On removing the pavers he found roots, which appeared to come from the nearby Fig tree. Several roots and some foliage were collected and sent to the Sydney Royal Botanic Gardens for DNA analysis. The material was confirmed as being from a Ficus microcarpa. Other sections of paving were lifted and fig roots found. 7. In about November 2016, in order to comply with pool fencing regulations, the applicant had the rear of the property landscaped. The previous slope was terraced and retained with a timber retaining wall. A woody root from the Cypress was cut during this process. It was also discovered that a previously installed agricultural drainage line, parallel to the dividing fence, had been blocked by fig roots. 8. The applicant states that the Cypress tree has not caused any structural damage to his property. During the hearing the applicant's father stated that the only reason the removal of the Cypress was sought was on the advice of an arborist who suggested that if the Fig were to be removed this may expose the conifer to winds and then presumably to failure. There is no written advice to support this.