Cuschieri v Fishburn [2021] NSWLEC 1185

Land and Environment Court New South Wales

Medium Neutral Citation: Cuschieri v Fishburn [2021] NSWLEC 1185 Hearing dates: 14 April 2021 Date of orders: 14 April 2021 Decision date: 14 April 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – termite damage not caused by trees – maintenance – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 s 7, s 10(1)(a), s 10(2)(a), Pt 2A s 14B, s 14E(1)(a), s 14E(2) Cases Cited: Dooley v Nevell [2007] NSWLEC 715 Hendry v Olsson [2010] NSWLEC 1302 Category: Principal judgment Parties: Rosette Mary Cuschieri (Applicant) Graham Robert Fishburn (First Respondent) Kathy Delma Fishburn (Second Respondent) Representation: Counsel C Guirguis (Solicitor) (Applicant) G Fishburn (Litigant in Person) (Respondents)

Solicitors: Coutts Lawyers and Conveyancers (Applicant) File Number(s): 2020/330689 Publication restriction: No

Judgment

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

Background to the application 1. Rosette Cuschieri ('the applicant') has applied to the Court seeking orders pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'). The three trees in her application are on the neighbouring property belonging to Kathy and Graham Fishburn ('the respondents'). 2. The main issues identified in Ms Cuschieri's Pt 2 application are: damage caused by termites, overshadowing causing dampness, and branches damaging her shed. She seeks orders for removal of the trees and for compensation of $2,000 for damage to her dwelling. 3. In her Pt 2A application, Ms Cuschieri claims the trees obstruct sunlight to her dwelling, and seeks orders for them to be pruned to 2.5 metres in height. 4. The hearing took place onsite allowing observations of the trees, both properties and the surrounding environment.