Levitus v Colvin and anor [2007] NSWLEC 708

Land and Environment Court of New South Wales

CITATION : Levitus v Colvin and anor [2007] NSWLEC 708

APPLICANT Rosalind Levitus PARTIES : RESPONDENT Mark Colvin and Michele McKenzie

FILE NUMBER(S) : 20680 of 2007

CORAM: Brown C - Fakes AC

KEY ISSUES: Trees (Neighbours) :- damage to property

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 17/10/07

EX TEMPORE JUDGMENT DATE : 17 October 2007

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr M Colvin

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C with Fakes AC

17 October 2007

20680 of 2007 Rosalind Levitus v Mark Colvin and Michele McKenzie

JUDGMENT 1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Ms Rosalind Levitus of 11 Cecily Street Lilyfield (the site) concerning two trees located close to the common boundary but within 11 Cecily Street Lilyfield owned by Mr Mark Colvin and Ms Michele McKenzie.

2 A spotted gum (Eucalyptus maculata) (Tree 1) is located in the front setback area of the site. It is mature and some 10 m in height with a canopy that spreads partly over the dwelling on the site and the dwelling of Ms Levitus. The trunk is located some 1 m from the common boundary. The tree was in existence when Ms Levitus moved into her dwelling 17 years ago.

3 A European hackberry (Celtis australis) (Tree 2) is located at the rear of the site in the rear courtyard area. It is located close to the boundary and has a significant lean away from the boundary. It is some 6 m in height. 4 The extemporaneous decision was given on site on 17 October 2007 and the judgment reflects the findings given at this time and the background documentation provided as part of the proceedings. 5 In relation to Tree 1, Ms Levitus' application seeks the: o repair of the existing retaining wall adjoining Tree 1 and to take preventative measures to ensure that no further damage occurs, and o repair of existing cracked pavers and to take preventative measures to ensure that no further damage occurs. 6 While accepting that personal risk of injury associated with the failure of the retaining wall is not high, Ms Levitus states that the greatest risk of injury is the possibility of being hit by broken branches or the potential collapse of the adjoining owners verandah that has been damaged by roots from the subject tree.