Irugalbandara v Colley [2010] NSWLEC 1017

Land and Environment Court of New South Wales

CITATION : Irugalbandara v Colley [2010] NSWLEC 1017

APPLICANTS Wimal and Candida Irugalbandara PARTIES : RESPONDENTS Ian and Cherie Colley

FILE NUMBER(S) : 20821 of 2009

CORAM: Fakes C

TREES (NEIGHBOURS) :- Damage to property KEY ISSUES: Injury to persons Compensation

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

Yang v Scerri [2007] NSWLEC 592 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] LEC 152

DATES OF HEARING: 20/01/2010

DATE OF JUDGMENT: 20 January 2010

EX TEMPORE JUDGMENT DATE : 20 January 2010

APPLICANTS Wimal and Candida Irugalbandara (litigants in person) LEGAL REPRESENTATIVES: RESPONDENTS Cherie Colley (litigant in person) Ian Colley (did not appear)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

20 January 2010

20821 of 2009 Wimal & Candida Irugalbandara v Ian & Cherie Colley

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by Mr and Mrs Irugalbandara of 5 Kelsall Street Doonside against the owners of a tree growing in the northern corner of the rear of 7 Garbet Place Doonside. The owners of that property are Mr and Mrs Colley. 2 The applicants are seeking the removal of the tree as they contend that it poses a risk of injury to persons and has caused, and could continue to cause, damage to their property. The damage said to have been caused is the blocking of gutters and downpipes leading to water damage to eaves and outdoor furniture under the pergola plus staining of tinted polycarbonate sheeting on the pergola roof. The applicants are also concerned about the future damage that roots from the tree may cause to the pergola slab, their house and plumbing system. The risk of injury is that posed by sticks, leaves and fruit that fall from the tree that could be a slipping or tripping hazard. 3 They are also seeking compensation of a sum of $2076 being comprised of: $676 for the replacement of polycarbonate sheeting for a pergola roof, $350 for cleaning of downpipes, $800 for replacement of gutter guard and $250 for the painting of eaves. 4 The tree was inspected from both properties. It is a Corymbia citriodora (Lemon-scented Gum) with bark more characteristic of a Spotted Gum (Corymbia maculata). It is in good health with very little dead wood, probably less than 2%. At about 3m above ground, the central leader bifurcates and at this point there is a minor bark inclusion indicated by reaction wood. This union appears sound. A first order branch on the southern side of the tree grows towards and overhangs the applicants' property. The attachment of this branch is sound. Other elements of the tree also overhang the applicants' property. Throughout the canopy there is some evidence of pruning and the normal shedding of dead wood.