Lister v Fraser & anor [2017] NSWLEC 1707

Land and Environment Court New South Wales

Medium Neutral Citation: Lister v Fraser & anor [2017] NSWLEC 1707 Hearing dates: 30 November 2017 Date of orders: 08 December 2017 Decision date: 08 December 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [74] Catchwords: TREES [NEIGHBOURS] : Damage to property; roots and buildings; potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Act 1979 Cases Cited: Fang v Li & anor [2017] NSWLEC 1503 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Texts Cited: Nil Category: Principal judgment Parties: Gerry Lister (Applicant) Richard & Manette Fraser (Respondents) Representation: Counsel: Applicant: Mr L Livingston Respondents: Mr C Bolger

Solicitors: Applicant: Ms J Lazzaro; Goldrick Farrell Mullan Solicitors Respondents: Mr R Mitchell; Fordham Lawyers File Number(s): 2017/248211 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The applicant contends that the roots of a Eucalyptus pilularis (Blackbutt) growing at the rear of the respondents' property have damaged his garage. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking, amongst other things, the removal of the tree and the payment, by the respondents, of $35,560.00 for the rectification of the damage. 2. The applicant is also seeking the reimbursement of the costs of, and incidental to, the proceedings. In this regard I note that 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. Apart from the damage allegedly caused by the roots of the respondents' Blackbutt, the applicant is concerned that were the walls of the garage to collapse, this could cause injury. Additionally, in January 2014 a large green branch fell from a Eucalypt onto the roof of the applicant's house and gazebo. The applicant believes this branch fell from the Blackbutt. It is assumed that the applicant is concerned about future branch drop. 4. The respondents rely in part on the opinion of their engineer, Mr Hugo Garcia, that the roots have not caused the damage.