McClintock & Anor v Lah & Anor [2017] NSWLEC 1561

Land and Environment Court New South Wales

Medium Neutral Citation: McClintock & Anor v Lah & Anor [2017] NSWLEC 1561 Hearing dates: 06 October 2017 Date of orders: 06 October 2017 Decision date: 06 October 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Pruning and compensation ordered see [28] Catchwords: TREES [NEIGHBOURS] :Damage to property, potential injury; compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Texts Cited: Nil Category: Principal judgment Parties: Daniel and Megan McClintock (Applicants) Cheol & In Sook Lah (Respondents) Representation: Applicants: Mr A Robertson (Solicitor) Respondents: Ms D Lah (Agent)

Solicitors: Applicants: Robertson Saxton Osborne File Number(s): 2017/186993 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The applicants have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('Trees Act') for the following orders at the respondents' expense: * Biannual monitoring and removal of dead and diseased wood from a Eucalyptus pilularis (Blackbutt) growing on the respondents' property; * Remediation of the soil surrounding the Blackbutt; * Compensation/reimbursement of insurance excess, arborist's report, filing fee and legal fees. 1. The orders are sought on the applicants' contention that branches falling from the tree have caused, and could continue to cause, damage to their property, specifically the roof of their dwelling, and could cause injury to anyone on their property. 2. In regards to the last proposed order, 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. 3. The respondents' position is that the tree is healthy and they have given the applicants' permission to prune the tree at their expense. They question whether the applicants' evidence proves that the damage to the applicants' roof was caused by branches from the Blackbutt; as such, the respondents reject the claim for reimbursement of the insurance excess and other costs.