Tadros v Alexander [2010] NSWLEC 1155

Land and Environment Court of New South Wales

CITATION : Tadros v Alexander [2010] NSWLEC 1155

APPLICANT Mr Gamil Tadros PARTIES : RESPONDENTS Geoffrey and Michelle Alexander

FILE NUMBER(S) : 20288 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Injury to persons

Trees (Disputes Between Neighbours) Act 2006 LEGISLATION CITED: Threatened Species Conservation Act 1995 Environmental Protection and Biodiversity Conservation Act 1999

Yang v Scerri [2007] NSWLEC 592 CASES CITED: Black v Johnson (No 2) [2007] NSWLEC 513 Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 22/06/2010

DATE OF JUDGMENT: 22 June 2010

EX TEMPORE JUDGMENT DATE : 22 June 2010

APPLICANT Mr G. Tadros [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENTS Mr G. and Mrs M Alexander [litigants in person]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

22 June 2010

20288 of 2010 Tadros v Alexander

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 Act) made by the owner of a child care centre in Scott Street Mortdale against the owners of three trees growing in an adjoining property. 2 The applicant is asking the Court to order the removal of all overhanging branches to within the respondents' property as he contends that branches falling from the trees pose a risk of injury to the children who visit the centre or could cause damage his property. 3 The risk of damage is the blocking of gutters due to the build up of leaf litter and other debris on the part of his roof located beneath the trees. 4 The risk of injury is said to be mainly from the potential failure of old epicormic branches arising from an old pruning cut on one of the trees. This concern arises from an arborist's report commissioned by the applicant from Jackson's Nature Works in December 2009. 5 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees subject to the application, has caused, is causing, or is likely in the near future cause, damage to the applicant's property or is likely to cause injury to any person. These tests must be applied to each of the three trees. 6 As an element of the application relates to future damage, the Court has regularly referred to the guidance decision given in Yang v Scerri [2007] NSWLEC 592. As a rule of thumb, the near future is a period of 12 months from the date of the determination.