Hopkins v Luff [2018] NSWLEC 1069

Land and Environment Court New South Wales

Medium Neutral Citation: Hopkins v Luff [2018] NSWLEC 1069 Hearing dates: 12 February 2018 Date of orders: 12 February 2018 Decision date: 12 February 2018 Jurisdiction: Class 2 Before: Galwey AC Douglas AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; adduced evidence does not demonstrate causation; respondent not informed of tree root growth at earliest opportunity; retaining wall inadequate; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Neil Hopkins (Applicant) Robert Luff (First Respondent) Rosemary Luff (Second Respondent) Representation: Neil Hopkins, litigant in person (Applicant) Robert Luff and Rosemary Luff, litigants in person (Respondents) File Number(s): 343754 of 2017

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. The Hopkins (Mr Hopkins is 'the applicant') bought their Gladesville dwelling in 1996. One half of a duplex development, it was newly built. The Luffs ('the respondents'), their neighbours to the southeast, reside at their dwelling where they have a garden with trees, including two mature pecan trees. One of the pecans ('the tree') is less than two metres from the boundary fence, and less than four metres from the Hopkins' dwelling. 2. The land slopes down to the northwest. When the Hopkins' dwelling was built the land was excavated to the boundary, resulting in a one-metre difference in ground level either side of the boundary. On the Hopkins' side of the boundary (the lower side) this required a retaining wall. This retaining wall, up to a metre or more tall, is of thin sandstone, without piers and with infrequent drainage points through it. Between the retaining wall and their dwelling is a narrow paved path. 3. In 2016 the Hopkins noticed cracks in their sandstone wall and uneven sections of their path. They raised their concerns with the Luffs. They raised their concerns again in October 2017, requesting removal of the tree. Within several days of this they had a 4-metre section of the wall repaired. 4. Mr Hopkins has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking the following orders: 1. Removal of the tree; 2. $900 compensation, being 50% of the cost of repairing the wall; 3. $2,900 compensation, being 50% of a quote for repairing the path. 1. The onsite hearing allowed us to view the situation. We bring our own arboricultural expertise and experience to this matter.