Sultana v Micallef [2012] NSWLEC 1078

Land and Environment Court New South Wales

Medium Neutral Citation: Sultana v Micallef [2012] NSWLEC 1078 Hearing dates: 29 March 2012 Decision date: 29 March 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal of one tree ordered and the pruning of others Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; leaf litter; noxious weeds; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997 Noxious Weeds Act 1993 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Clune v Falconer [2008] NSWLEC 1458 Moase v McMahon [2010] NSWLEC 1123 Ratay v Allen [2010] NSWLEC 1086 Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Category: Principal judgment Parties: Mrs L Sultana (Applicant) Mr P and Mrs V Micallef (Respondents) Representation: Applicant: Mrs L Sultana (Litigant in person) Respondents: Mr I Roche (Solicitor) Respondents: Shaddicks File Number(s): 21261 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 made under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Schofields against the owners of trees growing on an adjoining property. 2The applicant contends that 69 trees growing along the common boundary on the northern side of her property have caused, and could in the future cause, damage to her property and could cause injury to anyone on her property. 3The orders sought in the application are summarised as: * Removal of trees that are threatening buildings and structures; * Removal of overhanging branches; * Removal or treatment of diseased or termite infested trees; * Removal of noxious weeds; * Clearing of gutters of all debris that has accumulated within and on the buildings; * Flushing of drains of all debris accumulated over the past 14 years; * Removal of any tree roots that are encroaching and that may cause injury or are deemed to be a fire hazard; * Limits on any future planting of trees to avoid future damage or injury; * Reimbursement of a pest control invoice; and * Reimbursement of the Court filing fee. 4After the inspection of the trees, the applicant stated that she would be content with orders for the removal of all dead trees and the pruning of the remainder to fence height - about 1.5m above ground. 5The respondents do not wish to remove or prune all of the trees. They have permission from Blacktown City Council to remove some trees and to prune others. The removal of dead trees does not require council permission. 6The row of trees is of mixed species with predominantly Cupressus sp (Cypress Pines) at the western end and then an alternating mixture of Eucalyptus spp and Ligustrum spp (Privet) to the east. Most of the trees are within 1m of the common boundary; the boundary fence ranges from a 1.5m timber fence to a low open wire fence with or without a base of corrugated iron. 7From west to east, the structures/ areas on the applicant's property are front garden, pergola/ paved seating area, garage, series of old service sheds and then an open parking area and dish stormwater drain.