Awad v Hardie (No. 3) [2012] NSWLEC 1067

Land and Environment Court New South Wales

Medium Neutral Citation: Awad v Hardie (No. 3) [2012] NSWLEC 1067 Hearing dates: 8 March 2012 Decision date: 08 March 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed in its entirety. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; no changed circumstances; structural engineer's report; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Awad v Hardie [2010] NSWLEC 1213 Awad v Hardie (No 2) [2010] NSWLEC 1258 Hinde v Anderson and anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Fay Awad (Applicant)

Lilian Frances Hardie (Respondent) Representation: Fay Awad (Applicant in person)

Donna Hardie (Agent for the Respondent) File Number(s): 21176 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: In September 2010 this Court gave a decision regarding a Camphor Laurel tree in Kogarah. In Awad v Hardie (No 2) [2010] NSWLEC 1258, Senior Commissioner Moore and myself (Acting Commissioner Galwey) found that there was no evidence that tree roots had caused damage to Ms Awad's dwelling. We also concluded that if gutters were blocked by leaves, leading to water damage to the dwelling, such damage could have been avoided through reasonable maintenance. Similarly, we concluded that any risk of injury from fallen leaves and other small debris from the tree could be avoided through reasonable garden maintenance. The application was dismissed. 2The decision concluded at [15] with the following note: "However, we observe, in conclusion, that, in the case of Hinde v Anderson and anor [2009] NSWLEC 1148, the Court dealt with the question as to what might provide a basis of some future application if circumstances concerning the tree were to change and a proper basis for a further application based on that change has been demonstrated to the Court. The circumstances of the principles discussed in Hinde v Anderson also apply in these circumstances." 3A full reading of Hinde v Anderson makes it clear that a new application may be made to the Court regarding a tree that was the subject of an earlier application under the Act, provided that there are changes to the circumstances concerning the tree. 4Ms Awad has made a new application with regard to the same Camphor Laurel tree on the basis that it has caused damage to her property and is likely to cause injury. I must determine if there have been any changes to circumstances regarding the tree and its possible contribution to damage or risk of injury. The application 5Ms Awad's current application, made under the Trees (Disputes Between Neighbours) Act 2006, concerns the same Camphor Laurel tree and the same damage to her dwelling as did her previous application. She seeks the removal of the tree. In fact, the proposed orders in the application are for the removal of the tree by Kogarah Council, at the respondent's expense. A further order is sought for the rectification of the existing colourbond fence along the boundary following tree removal. 6With regard to the inclusion of the local council in the orders sought, I note that s 9 of the Act does not give the Court power to order the local council to carry out any works. Section 17 of the Act describes the process of an applicant requesting the local council to carry out works for which the Court has made orders that the respondent has not carried out. As the Court has not made any orders regarding the Camphor Laurel, this is irrelevant here. 7The application includes a report by Mr Victor Ignatenko, a structural and civil engineer. The report contends that the tree has caused structural damage and will cause further damage and danger to human life. 8Ms Awad submitted photographs showing two branches that have fallen from the Camphor Laurel since the decision of September 2010, along with a statement from Dr Peter Parras (dated 14 December 2011) that she "... recently sustained a fracture of the left foot in the area of the 5 th metatarsal. She states that she lost her footing in her backyard when she tripped over branches and leaves which were overhanging onto her property from her neighbour's backyard." 9In an earlier statement dated 25 August 2011 Dr Parras asserted that the Camphor Laurel tree is causing Ms Awad stress and that she has difficulty cleaning up fallen leaves because of her condition.