Vethanayagam v Nelson [2024] NSWLEC 1065

Land and Environment Court New South Wales

Medium Neutral Citation: Vethanayagam v Nelson [2024] NSWLEC 1065 Hearing dates: 28 September 2023 Date of orders: 21 February 2024 Decision date: 21 February 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – row of trees along boundary wall – whether the trees have caused damage – whether the trees are likely to cause damage – application refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 5, 7, 10, 12 Cases Cited: Fang v Li & anor [2017] NSWLEC 1503 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Australian Standard AS2870-2011 Residential Slabs and Footings CSIRO, Foundation Maintenance and Footing Performance (2021) Category: Principal judgment Parties: Bella Padie Vethanayagam (Applicant) Larry John Nelson (First Respondent) Elizabeth Dacres Nelson (Second Respondent) Representation: Counsel: A Vethanayagam (Agent) (Applicant) A Cox (Solicitor) (Respondents)

Solicitors: Tony Cox Lawyers & Conveyancers (Respondents) File Number(s): 2023/238748 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Bella Vethanayagam (the applicant) and Dr Arichandiran Vethanayagam live at their large residential property in King Creek, where they built a low concrete wall (the wall) along their eastern boundary. Their neighbours, Elizabeth and Larry Nelson (the respondents), have a row of small lilly pillies (the trees) on their property between their long bitumen driveway and the wall. The trees were planted less than a metre from the wall by the previous owners of the respondents' property. 2. The applicant alleges that the trees have damaged the boundary wall, and will cause further damage in the near future. She applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the removal of the trees, 19 in total. The respondents refute that the trees have caused or will cause damage. They proposed that, if the Court is to make orders, such orders should be for the respondents to maintain the trees so that they are no taller than the boundary wall, and so that they do not contact the boundary wall nor spread to form a continuous canopy. 3. The respondents' proposed orders included an order for costs. During the hearing, the applicant also asked for a costs order, although this was not in her application. Commissioners of the Court cannot order costs.