Syed v Kenna Investments Pty Ltd [2010] NSWLEC 1303

Land and Environment Court of New South Wales

CITATION : Syed v Kenna Investments Pty Ltd [2010] NSWLEC 1303

APPLICANT Mr L Sayad PARTIES : RESPONDENT Kenna Investments Pty Ltd

FILE NUMBER(S) : 20553 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; tree removal; compensation reduced due to contributing factors

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 04/11/10

DATE OF JUDGMENT: 4 November 2010

EX TEMPORE JUDGMENT DATE : 4 November 2010

APPLICANT Mr L Syed [litigant in person]

LEGAL REPRESENTATIVES:

RESPONDENT Mr D Kennedy [agent]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

4 November 2010

20553 of 2010 Syed v Kenna Investments Pty Ltd

JUDGMENT 1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Boronia Road Greenacre against the owner of 2 trees growing at the rear of an adjoining property. 2 The applicant is seeking the removal of the trees and compensation for the replacement of a concrete slab he says has been damaged by the trees. The amount claimed is $2500. This sum is on the basis of a quote to remove and replace the slab and reinforce it with steel. 3 The trees are 2 Ligustrum lucidum (Broad-leafed Privet) growing on the southern boundary of the respondent's property. The trees are growing in a narrow strip of soil approximately 800mm wide between the metal dividing fence and a concrete dish drain. Tree 1 is to the east and Tree 2 is to the west. 4 On the other side of the drain is a row of Lophostemon confertus (Brush Box). These have been the subject of past discussions between the parties but are not an issue in these proceedings. 5 The respondent accepts that the trees are a known weed species but considers them to be valuable as a visual screen between the applicant's property and the rear of the respondent's property, an aged care facility. The trees provide a measure of privacy for residents of both properties. 6 I inspected the concrete slab. It was clear that roots from tree 1 are growing beneath a corner of the slab and along its western edge. It was clear from the characteristics and morphology of the roots that they are from the Privet and not the Brush Box. 7 There was no evidence of any damage being caused to the applicant's property by tree 2. The applicant stated that this tree blocked light to a window however this is not a matter in which the Court has jurisdiction for an application made under Part 2 of the Trees Act. 8 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree 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. These tests must be applied to each tree. 9 I am satisfied that the roots from tree 1 have contributed to the damage to the slab, and therefore, with respect to this tree, the jurisdiction is enlivened and the Court may make an order. 10 With respect to tree 2, there is no evidence that this tree has caused or is causing damage to the applicant's property. The applicant stated that he was concerned about future damage to his house. There is no evidence to suggest that this is likely to happen in the near future. 11 In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the rule of thumb is that the 'near future' is a period of 12 months from the date of determination of the application. 12 Therefore as none of the tests under s 10(2) are satisfied for tree 2, no order can be made with respect to this tree. 13 In making an order with respect to tree 1, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property (d) The tree is a recognised weed species and is therefore likely to have a detrimental impact on the local ecosystem (e) The tree provides a visual screen between the two properties (h)(i) Anything other than the tree that may contribute to the damage (see the next paragraphs)