Gieth v Athamawa [2023] NSWLEC 1121

Land and Environment Court New South Wales

Medium Neutral Citation: Gieth v Athamawa [2023] NSWLEC 1121 Hearing dates: 17 January 2023 Date of orders: 17 January 2023 Decision date: 17 January 2023 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court orders that: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent's land – leaves and small sticks falling onto applicant's land – maintenance burden – is there genuine risk of injury Legislation Cited: Trees (Disputes between Neighbours) Act 2006, Pt 2, ss 7, 8, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Murray v Shoebridge [2007] NSWLEC 785 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Category: Principal judgment Parties: S Gieth, self-represented (Applicant) M Athamawa, non-appearance (Respondent) Representation: S Gieth, self-represented (Applicant) M Athamawa, non-appearance (Respondent) File Number(s): 2022/302802 Publication restriction: Nil

JUDGMENT

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

COMMISSIONER: 1. The applicant, Ms Sanaa Gieth, owns a property in Kellyville, while Dr Mohamed Athamawa, the respondent, owns the neighbouring property, to the south-west of the applicant's land. Between the properties is a public laneway, about 4 metres (m) wide. Both properties' side boundaries facing the laneway run from south-east at the front to north-west at the rear. The applicant occupies her property, while the respondent's dwelling is leased to tenants. 2. The tree at issue is a mid-mature Platanus x hybrida (London Plane) (the tree) about 15 m tall with a canopy spread of about 12 m, which is planted about 600mm from Dr Athamawa's side boundary facing the laneway, and about 3 m from his rear boundary. The north-western end of the laneway exits onto a major road, with a large intersection nearby. There is a separation of almost 5 m between the tree and Ms Gieth's side boundary.