Grossman v Amaro [2012] NSWLEC 1154

Land and Environment Court New South Wales

Medium Neutral Citation: Grossman v Amaro [2012] NSWLEC 1154 Hearing dates: 5 June 2012 Decision date: 05 June 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: (1)The application is dismissed in its entirety. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; damage to property and risk of injury so insignificant as to not warrant orders of the Court; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC Category: Principal judgment Parties: Barry Grossman and Raquel Grossman (Applicants)

Tony Amaro (Respondent) Representation: Barry Grossman -Litigant in person (Applicants)

Tony Amaro -Litigant in person (Respondent) File Number(s): 20242 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: The Grossmans have owned their North Bondi property for about 15 years. Soon after they moved into it about nine years ago, the fence along the common boundary with the property to the east was replaced with a timber paling fence. In 2006 they had a swimming pool constructed in their rear garden. They now contend that neighbouring palm trees are damaging the fence, that debris from those trees damages the pool cleaning system and gives rise to a risk of injury, and that overhanging shrubs require excessive pruning. 2They seek orders, under the Trees (Disputes Between Neighbours) Act 2006 (the Act), for the removal or regular pruning of the palm trees, pruning of the overhanging shrubs, and repair or replacement of the fence and concrete blocks along its base. In their application they also claim the costs of the Court's application fee. As a Commissioner of the Court I do not have the power to award costs, which can only be awarded by a Judge of the Court, thus requiring a Notice of Motion if the applicants wish to pursue that. 3Mr Amaro, their neighbour and the respondent in this matter, owns the trees. He disputes that his trees have caused any damage and that they pose a risk of injury. He planted the palms soon after purchasing his property about 32 years ago. 4If the Court is satisfied that the trees have caused damage or pose a risk of injury, orders can be made regarding those trees. I am not obliged to make the orders sought by the applicants, but after considering the matters in s 12 of the Act can make orders such as those in s 9 as I think fit to remedy, restrain or prevent damage to property or to prevent injury.