So v Turnbull [2021] NSWLEC 1424

Land and Environment Court New South Wales

Medium Neutral Citation: So v Turnbull [2021] NSWLEC 1424 Hearing dates: 22 July 2021 Date of orders: 22 July 2021 Decision date: 22 July 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. (2) The exhibits are returned, except for Exhibits A and 3. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree – damage to property – whether the tree caused damage – evidence – tree has been removed – compensation – acts or omissions of the parties – application refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 10, 12 Category: Principal judgment Parties: Alice So (Applicant) Tania Turnbull (Respondent) Representation: I So (Agent) (Applicant) S Karatasas (Agent) (Respondent) File Number(s): 2021/107846 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. Alice So ('the applicant') has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking compensation from her neighbour, Tania Turnbull ('the respondent'), for property damage she says was caused by Ms Turnbull's tree. No orders are sought for the tree, which has been removed.

Framework for this decision 1. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the tree's owner (s 10(1)(a) of the Trees Act). 2. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury to any person. Then, before making any orders, the Court must consider the matters at s 12 of the Trees Act. 3. Although the subject tree has been removed, it is still taken to be situated on the respondent's land for the purposes of the application (s 4(4) of the Trees Act).