Cutler v Smith [2007] NSWLEC 832

Land and Environment Court of New South Wales

CITATION : Cutler v Smith [2007] NSWLEC 832

APPLICANT M B and N S Cutler PARTIES : RESPONDENT R Smith

FILE NUMBER(S) : 20935 of 2007

CORAM: Tuor C - Fakes AC

KEY ISSUES: Trees (Neighbours) :- Sydney Blue Gum tree, damage to property, risk of injury to persons.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 17/12/2007

EX TEMPORE JUDGMENT DATE : 17 December 2007

APPLICANT self represented LEGAL REPRESENTATIVES: RESPONDENT self represented

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C Fakes AC

17 December 2007

20935 of 2007 Malcolm B and Norelle S Cutler v Richard Smith

JUDGMENT 1 This is an application pursuant to s. 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Cutler of 123 Castle Hill Road West Pennant Hills concerning a mature Eucalyptus saligna (Sydney Blue Gum). The tree is wholly located on 1 Glenhope Road West Pennant Hills, a property owned by Mr Richard Smith and leased by Alison and Mark Wharton. Mr and Mrs Wharton operate a childcare centre on the property. 2 The tree is a mature and healthy specimen located within approximately 1 m of the boundary fence between the applicant's and the respondent's properties. 3 The Cutlers are concerned that the tree has dropped, and will continue to drop, branches onto their roof thus causing damage to their property, particularly the breaking of roof tiles. They are also concerned about the risk of injury to themselves and to the children in the childcare centre. They are seeking either the pruning of the tree to below roof level or its removal. They are also seeking compensation of a quoted amount of $2667.00 which includes $330.00 for the replacement of broken roof tiles, $1650.00 for internal painting required as a result of water damage from the broken tiles and $500.00 for paid security while these works are carried out plus GST. 4 The owner of the tree does not want the tree removed or substantially pruned as he submits that the tree existed well before either property was built, it is part of the natural landscape, it contributes to the local biodiversity and has great aesthetic value. 5 Under s 10.2 of the Act the Court must be satisfied that the tree has caused, is causing, or will, in the near future, cause damage to property or injury to persons. The Court must also consider a number of matters under s 12 of the Act. In the case of this tree, the following clauses of s 12 are considered relevant: