Kent v Karpisek [2010] NSWLEC 1149

Land and Environment Court of New South Wales

CITATION : Kent v Karpisek [2010] NSWLEC 1149

APPLICANT Dr Peter Kent PARTIES : RESPONDENT Mr A Karpisek

FILE NUMBER(S) : 20250 of 2010

CORAM: Fakes C - Galwey AC

KEY ISSUES: TREES (NEIGHBOURS) :- Future damage to property Injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

Yang v Scerri [2007] NSWLEC 592 CASES CITED: Robson v Leischke [2008] NSWLEC 152 Dooley & anor v Nevell [2007] NSWLEC 715

DATES OF HEARING: 18/06/2010

DATE OF JUDGMENT: 18 June 2010

EX TEMPORE JUDGMENT DATE : 18 June 2010

APPLICANT Dr P Kent [litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT Mr P Wood, solicitor Philip R Wood, Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C Galwey AC

18 June 2010

20250 of 2010 Kent v Karpisek

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Burraneer Bay Road Caringbah against the owner of trees growing in a property in Gannons Road Caringbah. 2 The applicant is seeking the removal of all overhanging branches and one of three trunks of a Fig tree and the drilling of a eucalypt to determine the presence or otherwise of termites. 3 The applicant is concerned that branches from the fig that overhang his roof may cause damage to the tiles. He is also concerned that one of the trunks of the fig is causing damage to the dividing fence. He contends that the roots of the tree have displaced the gravel path between the fence and the house and that, in the future, roots may cause damage to the foundations of his house. 4 With respect to the eucalypt, the applicant is concerned that dead branches falling from the tree may cause injury. He is also concerned that the entire tree may fail onto his property. This concern is based on the failure of another eucalypt some 4-5 years ago. This tree fell onto an adjacent tennis court and close to the corner of his town house. The applicant was uncertain as to whether the tree that fell was dead or alive at the time. 5 Each of the trees subject to this application must be considered individually, and an assessment made in accordance with s 10(2) of the Act. This section states that the Court must not make an order unless it is satisfied that any of the trees concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury to any person. As the applicant is concerned about future damage, the Court has regularly referred to the guidance decision given in Yang v Scerri [2007] NSWLEC 592. As a rule of thumb, the near future is a period of 12 months from the date of the determination.