Bustamante v Mlinaric [2009] NSWLEC 1324

Land and Environment Court of New South Wales

CITATION : Bustamante v Mlinaric [2009] NSWLEC 1324

APPLICANT Nga Bustamante PARTIES : RESPONDENT Mark and Romana Mlinaric

FILE NUMBER(S) : 20383 of 2009

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- Pruning of tree, damage to property

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280

DATES OF HEARING: 8 September 2009

EX TEMPORE JUDGMENT DATE : 8 September 2009

APPLICANT Nga Bustamante (litigant in person) LEGAL REPRESENTATIVES:

RESPONDENT Mark and Romana Mlinaric (litigant in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

8 September 2009

20383 of 2009 Nga Bustamante v Mark and Romana Mlinaric

JUDGMENT 1 A hedge of three Pittosporum undulatum and five Tecomaria capensis is growing close to the northern boundary of 3 Bargadda Avenue, Sylvania. This property and the hedge are owned by Mr and Mrs Mlinaric.

2 Mrs Bustamante is the owner of 1 Barjadda Avenue, Sylvania, the adjoining land to the north. She has made an application under the Trees (Disputes Between Neighbours) Act 2006 for the hedge to be cut to an appropriate height to prevent damage to her property, and to allow natural light to her house.

3 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person? 4 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 5 I find that both the Pittosporum, and the Tecomaria which is a tall, self-supporting "scrambler", are trees within the meaning of that term in s 3(1) of the Act.