McVicker v Finlay

Land and Environment Court New South Wales Medium Neutral Citation: McVicker v Finlay & anor [2016] NSWLEC 1019 Hearing dates:21 January 2016Date of orders: 21 January 2016 Decision date: 21 January 2016 Jurisdiction:Class 2Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; compensation/ rectification; discretionary matters; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category:Principal judgmentParties: Mr M McVicker (Applicant) Mr P & Ms R Finlay (Respondents) Representation: Applicant: Mr M McVicker (Litigant in person) Respondent: Mr K Finlay (Agent) File Number(s):20972 of 2015Judgment COMMISSIONER: The applicant owns a property in Berkeley Vale. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the repair of structural damage to his dwelling, the replacement of the concrete driveway and the reconstruction and realignment of his carport including the replacement of guttering; all at the respondents’ expense. The applicant contends that the respondents’ tree caused the damage; hence the orders sought. The tree the subject of the application was removed by the respondents in December 2015. The species is unknown however from the photograph in the application claim form it may have been a Harpephyllum caffrum (Kaffir Plum). The photograph indicates that it was a reasonably mature specimen growing on the respondents’ property within 1m...