Thomas & anor v Holmes & anor [2017] NSWLEC 1192

Land and Environment Court New South Wales

Medium Neutral Citation: Thomas & anor v Holmes & anor [2017] NSWLEC 1192 Hearing dates: 27 March 2017 Date of orders: 11 April 2017 Decision date: 11 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [47] Catchwords: TREES [NEIGHBOURS] Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Cases Cited: Ghazal v Vella (No 2) [2011] NSWLEC 1340) Robson v Leischke [2008] NSWLEC 152 Category: Principal judgment Parties: Peter Thomas (First Applicant) Amatrin Pty Ltd (Second Applicant) Glenn Holmes (First Respondent) Kimberley Holmes (Second Respondent) Representation: Applicants: Ms L Byrne (Barrister) Respondents: Mr G Holmes (Litigant in person)

Solicitors: Applicants: Penklis Lawyers File Number(s): 386285 of 2016 Publication restriction: No

judgment 1. COMMISSIONER: The applicants contend that roots from a mature Eucalyptus robusta (Swamp Mahogany) have caused, and will continue to cause damage to property on land to which they have a legal right. They have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders to be carried out at the respondents' expense: * Removal of the tree, * Rectification of the damage allegedly caused by the tree including damage to a stormwater pipe, stairs, retaining wall, and portico; * Compensation of $44,713.00, which includes reimbursement of money spent and quotations for rectification works, * Access to the respondents' land for quotes and carrying out of work, and * Replacement of the dividing fence in accordance with s 13A of the Dividing Fences Act 1991 1. The respondents do not wish to remove the tree. They contend that the tree existed prior to the construction of the stairs and portico and that the stairs were built over the tree roots. Amongst other things, the respondents maintain that the masonry wall which supported to portico was inadequate for the purpose and that no drainage material was installed behind it; its failure was therefore predictable. In regards to drainage, the respondents submit that this has been an issue for decades and there is no evidence the problem has been caused by the tree.