Vinski v Wilson [2023] NSWLEC 1801

Land and Environment Court New South Wales

Medium Neutral Citation: Vinski v Wilson [2023] NSWLEC 1801 Hearing dates: 23 August 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – is tree causing damage to applicants' property – has applicant undertaken reasonable maintenance – relevant s 12 considerations Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Category: Principal judgment Parties: Lucy Vinski, (Applicant) Alexandra Wilson (Respondent) Representation: L Vinski, Self-represented (Applicant) A Wilson, Self-represented (Respondent) File Number(s): 2023/195479 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.

Background 1. Lucy Vinski, the applicant, has owned and occupied a property in Naremburn, on Sydney's north shore, for about 30 years. Alexandra Wilson, the respondent, purchased her neighbouring property in January 2019. 2. The respondent's property had a Fraxinus griffithii (Evergreen Ash) (the tree), growing near the rear of the parties' common side boundary, part of the canopy of which overhung the applicant's garage, which is located in Ms Vinski's back corner up against the common boundary. 3. The applicant claimed that the tree was damaging the corrugated iron roof of her garage and was causing an unreasonable maintenance burden from leaves and other debris falling and blowing onto the garage, in light of her elderly status. 4. Ms Vinski requested that the respondent prune and maintain the tree to prevent damage and the requirement for maintenance. Ms Wilson provided evidence of invoices and photographs showing that major branches from the tree overhanging the applicant's roof were pruned in February 2019 and February 2023, but this failed to satisfy the applicant. 5. Consequently, Ms Vinski made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders to remedy damage the tree had allegedly caused, was causing, or is likely to cause in the near future, and risk of injury the tree presents.