Mekhael v Scurville [2021] NSWLEC 1470

Land and Environment Court New South Wales

Medium Neutral Citation: Mekhael v Scurville [2021] NSWLEC 1470 Hearing dates: 13 May 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that the application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused – apprehension of damage – does extent and nature of damage outweigh s 12 considerations – is intervention required Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4373:2007 Pruning of amenity trees Category: Principal judgment Parties: Maryan Mekhael (Applicant) Dominic Ralph Scurville (First Respondent) Messalina Mary Scurville (Second Respondent) Representation: M Mekhael (Litigant in person) (Applicant) D Scurville (Litigant in person) (First Respondent) M Scurville (Litigant in person) (Second Respondent) File Number(s): 2021/30812 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant, Mrs Mekhael, has occupied her dwelling since about 2010, while the respondents, Mr and Mrs Scurville, have owned their property here since 2006. Between their properties in Quakers Hill, they share a long side boundary which runs from east at the front to west at the rear. 2. A row of four mature Casuarina cunninghamiana (River She Oak) (the trees), about 11 metres in height, is located in the respondents' property, close and roughly parallel to their rear boundary, and fairly evenly spread along its length of about 15 metres. The specimen at the northern end of this row is growing about 3.5 metres from the common boundary. In her application, Mrs Mekhael also refers to a bush growing closer to the boundary. This is a variety of Schinus sp., which is generally considered to be a weed. 3. Mrs Mekhael lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage that the trees have caused, are causing, and are likely to cause in the near future.