Burling v Nolan [2012] NSWLEC 1241

Land and Environment Court New South Wales

Medium Neutral Citation: Burling v Nolan [2012] NSWLEC 1241 Hearing dates: 28 August 2012 Decision date: 28 August 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application to remove trees upheld. Application for compensation upheld. Catchwords: TREES [NEIGHBOURS] Damage to property; possible injury; compensation for damage caused by tree. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Riachi v Kerslake [2010] NSWLEC 1153 Holden v Smith [2011] NSWLEC 1066 Black v Johnson (No 2) [2007] NSWLEC 513 Category: Principal judgment Parties: Mr R Burling (Applicant) Ms L Nolan (Respondent) Representation: Applicant: Ms K Lahodny (Solicitor) Respondent: Did not attend Shoalcoast Community Legal Centre File Number(s): 20270 of 2012

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) by the owner of a property in Greenwell Point against the owner of three trees growing on an adjoining property. 2The applicant is seeking orders for the removal of the three trees on the basis of preventing further damage or injury to existing elements of his property and potential damage to a fence he wishes to erect. He is also concerned about potential injury to anyone on his property from falling branches or indirectly by asbestos fibres that may be released if trees fail onto an adjoining fibro shed. 3The applicant is also seeking compensation for damage caused to the roof of his shed by a branch falling from one of the trees. 4The applicant was represented by a solicitor from the Shoalcoast Community Legal Centre. The respondent did not attend the hearing because of on-going medical treatment. I am satisfied that the respondent was fully aware of the proceedings and was afforded the opportunity to attend or appoint a representative. 5The three trees are located at the rear of the respondent's property close to the common boundary. The western-most tree, Tree 1, is a mature Grevillea robusta (Silky Oak), Tree 2 is a dead and disintegrating Quercus sp (Oak), and Tree 3 is a mature Cupressus macrocarpa cv (Monterey Cypress). 6In applications made under Part 2, a key jurisdictional test is s 10(2). This section states that the Court must not make an order under this part unless it is satisfied that any of the trees the subject of the application, have caused, are causing, or could in the near future cause, damage to the applicant's property or injury to any person. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". 7If any one of the tests in s 10(2) is satisfied for any of the trees the subject of the application, then the Court's powers under s 9 of the Act to make any orders it thinks fit to remedy, restrain or prevent damage or injury, are engaged. There is no obligation to make the orders desired by either of the parties. If no tests are met, then the Court cannot make any orders.