Oaten v Robinson [2012] NSWLEC 1028

Land and Environment Court New South Wales

Medium Neutral Citation: Oaten v Robinson [2012] NSWLEC 1028 Hearing dates: 10 February 2012 Decision date: 10 February 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal refused; pruning ordered; compensation refused Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons, compensation; reasonable effort to reach agreement Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Ball v Bahramali & anor [2010] NSWLEC 1334 Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Mr B Oaten (Applicant) Ms A Robinson (Respondent) Representation: Applicant: Mr B Oaten (Litigant in person) Respondent: Mr A Seton (Solicitor) Respondent: Marsdens Law Group File Number(s): 21008 of 2011

Judgment This decision was given as an oral decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in St Georges Basin against the owner of 13 trees growing on an adjoining property. 2The applicant is seeking Court orders for the management of the trees in accordance with an arborist's report obtained by him in October 2011 from Moore Trees. That report recommends a number of actions including tree removal, removal of deadwood, and crown reduction. 3The orders are sought on the basis that falling branches from the respondent's trees have caused, or could in the future cause, damage to the applicant's property or could cause injury to his family. 4The damage alleged to have been caused is damage to the roof of the garage, attached dwelling, and vehicles, as well as leaf litter and twigs accumulating in gutters. 5The applicant is also seeking $13,000 in compensation. $10,000 is for roof repairs he contends were necessitated by damage caused by branches and leaves falling from the respondent's trees. $3000 is for unspecified damage to vehicles said to have been damaged by falling branches. 6The respondent is prepared to undertake some removal of dead wood from a number of trees should the Court require it. The respondent's position is based in part on the recommendations of Mr Scott Freeman, and arborist engaged by the respondent. Mr Freeman was present at the hearing and assisted the Court by numbering the trees.