Kam v Hamilton [2012] NSWLEC 1010

Land and Environment Court New South Wales

Medium Neutral Citation: Kam v Hamilton [2012] NSWLEC 1010 Hearing dates: 23 January 2012 Decision date: 23 January 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal of tree on adjoining property ordered Catchwords: TREES [NEIGHBOURS] Consent orders; damage to property, injury to any person Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Ms P Kam (Applicant) Ms L Hamilton (Respondent) Representation: Ms P Kam (Applicant in person)

Mr N Eastman, Barrister Abrahams & Associates (Respondent) File Number(s): 21255 of 2011

Judgment 1COMMISSIONER: This is an application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Ms Kam against Ms Hamilton, the owner of a mature Eucalyptus pilularis (Blackbutt) growing on an adjoining property in Killara. 2Ms Kam seeks orders from the Court for the removal of the Blackbutt on the basis that it has caused, and could continue to cause, damage to her property. A large branch fell from the tree without warning in December 2011; she is concerned that other branches may fall onto her property, particularly onto a part of the house in which her children sleep. 3The damage alleged to be caused by the tree is cracking of a wall surrounding a paved courtyard and the cracking of an adjoining pillar that supports an upper storey. The presumed cause of the damage is a large root growing against the footings and exerting pressure on them. 4Ms Kam also seeks orders for the removal of another smaller Blackbutt on her own property. She is concerned that if large limbs fail from Ms Hamilton's Blackbutt, they may fall onto this tree, which may then fall onto her house or backyard. Section 7 of the Act states: An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence to which this Act applies that is situated on adjoining land. 5That is, the Act does not apply to trees on an applicant's land, and therefore the Court has no jurisdiction to make orders concerning trees on an applicant's land. In this case, Ms Kam's tree is subject to Ku-ring-gai Council's Tree Preservation Order and the council is the consent authority. Therefore, this element of the application is dismissed. 6Ms Hamilton agrees that the Blackbutt has caused damage to the Kam dwelling and will continue to do so. She is also concerned for the safety of her own family, and that of Ms Kam, should another branch fail. To that end, she agrees to consent orders requiring the removal of the tree at her expense.