Schellnack v Burrows [2023] NSWLEC 1717

Land and Environment Court New South Wales

Medium Neutral Citation: Schellnack v Burrows [2023] NSWLEC 1717 Hearing dates: 7 August 2023 Date of orders: 28 November 2023 Decision date: 28 November 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: See Orders at [47]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to roof – risk of injury to persons – considerable s 12 considerations Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6,7, 8, 9, 10, 12, Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Australian Standards, AS 4373:2007, Pruning of amenity trees, March 2007 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, July 2016 Category: Principal judgment Parties: Joan Schellnack (Applicant) Roger Burrows (First Respondent) Anne Burrows (Second Respondent) Representation: J Schellnack (Self-represented) (Applicant) R Burrows (First and Second Respondents) File Number(s): 2023/166721 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: The applicant, Joan Schellnack, shares a boundary in Tuggerah with the property of the first and second respondents, Roger and Anne Burrows, which contains a row of ten mature trees growing in close proximity to the common boundary and overhanging the rear of the applicant's dwelling. The properties are accessed from different roads. 2. Ms Schellnack made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), seeking orders for removal of twelve trees, including their roots, and compensation for damage to her house, due to alleged damage that the trees have caused, are causing, and are likely to cause in the near future. The applicant also claimed that the trees present a risk of injury to persons. 3. In 2011, Ms Schellnack occupied her dwelling, which was constructed in 2010 on a previously vacant block. The applicant submitted that limbs regularly dropped from all the trees onto the adjacent section of her dwelling's roof above a bathroom and four bedrooms. The applicant claimed that the damage had been ongoing for ten years but had increased over the last three years. The claimed damage comprised broken tiles and roof sarking, and secondary damage to gyprock cladding, bathroom walls, and floors, along with ongoing mould growth, all allegedly resulting from water penetrating through the roof. The applicant also claimed that damage was being caused by roots from the trees growing under the concrete slab of her dwelling. 4. Mr Burrows resisted removal of the trees and claimed that he kept them regularly maintained. He noted having applied to Wyong Shire Council in 2008 when the applicant's house construction was planned, seeking removal of three trees, but that Wyong Shire Council permitted removal of one tree only. The properties now fall under Central Coast Council (Council), which was established in 2016 upon the amalgamation of Gosford City Council and Wyong Shire Council.