Goodwin v White [2012] NSWLEC 1054

Land and Environment Court New South Wales

Medium Neutral Citation: Goodwin v White [2012] NSWLEC 1054 Hearing dates: 12 March 2012 Decision date: 12 March 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; pruning ordered; part compensation ordered Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292 Joaquim v Adamson [2009] NSWLEC 1312 Category: Principal judgment Parties: Ms C Goodwin (Applicant) Ms J White (Respondent) Representation: Applicant: Ms C Goodwin (Litigant in person) Respondent: Mr O'Brian (Agent) File Number(s): 21170 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Seven Hills against the owner of trees growing on an adjoining property. 2The applicant is seeking the following orders: (1)The pruning of all branches of T1 - a Pinus sp that overhang her property and an annual inspection of the tree by an arborist. Reasons: Possible whole tree failure onto her dwelling as a result of an uneven canopy; possible damage to paths, the house and other structures by tree roots; shedding of leaves into the guttering; shedding of sharp needles and cones onto the front yard that may cause injury; interference with the electricity service lines to her dwelling; and excessive shading leading to a mouldy ceiling. (2)Regular pruning of overhanging branches from T2 and T3 - both Jacarandas, and T4 - an Acer negundo (Box Elder), and the installation of a root barrier. Reasons: To prevent dropping of leaves into the guttering; to prevent potential damage to structures by roots. (3)Compensation of up to $3759.90. This comprises $295 for two lattice panels damaged when a Schinus areira (Pepper tree) (T5) fell onto the applicant's fence; $960 - personal labour costs for the cutting up and removal of the fallen Schinus; $354.90 for materials to replace a decorative timber garden screen destroyed by the fallen Schinus; and $2150 for the replacement of the guttering on the applicant's house - claimed in part to have been caused by the build up of leaves from the Pine. 3In applications made under Part 2 of the Act, the most important jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that any tree subject to the application 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. The guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future. 4In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J at [29] cites Preston CJ in Robson v Leischke [2008] NSWLEC 152, who makes it clear that the Court must be satisfied as to the existence of a causal connection between a tree that is the subject of an application and the damage or injury claimed by an applicant. The tree need only be a cause to engage the jurisdiction. Further in Smith & Hannaford , Craig J considers the level of satisfaction required by the Court of the causal nexus between a tree and any damage. At [62] Craig J states that "something more than a theoretical possibility is required in order to engage the power under the [Trees Act]". The level of confidence required is at least, the "bare preponderance of probability". 5The hearing commenced with an inspection of trees 1-4 and of the applicant's property. Each tree will be considered in turn.