Sanh v Truong [2012] NSWLEC 1274

Land and Environment Court New South Wales

Medium Neutral Citation: Sanh v Truong [2012] NSWLEC 1274 Hearing dates: 4 October 2012 Decision date: 04 October 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; injury; falling leaves; spiders Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Clune v Falconer [2008] NSWLEC 1458 Category: Principal judgment Parties: Ms Van Sanh (Applicant) Mr Cuu Truong (Respondent) Representation: Applicant: Ms Sanh (litigant in person) Respondent: Mr A Truong (Agent) File Number(s): 20631 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 under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Canley Vale against the owner of three trees growing on an adjoining property. 2At the on-site hearing the applicant was assisted by a friend, Ms Tanya Nguyen, who translated the oral proceedings. 3The applicant is asking the Court to order the respondent to take any steps, at his own cost, to prevent any branches of the trees from growing over or through the dividing fence onto the applicant's property. Similarly, orders are sought for the respondent to prevent any leaves and other debris from falling onto her property. 4In addition, orders are sought to have the respondent pay for the cleaning of the gutters of her dwelling, clearing of a narrow gap ('ditch') between the fence and a concrete path, and for the spraying of any insects/ spiders that may be present as a result of the leaf litter. 5The orders are sought in order to allow the proper functioning of the guttering and downpipe, and to prevent injury as a result of slipping on debris or from being bitten by insects. 6I also note that the applicant has claimed the cost of the Court's filing fee for lodging the application. This is not something that Commissioners have the jurisdiction to award. A separate Notice of Motion must be made and then determined by a Judge or Registrar of the Court. 7The trees are two Crepe Myrtles and one Magnolia; all trees are about 3-4m tall. The Crepe Myrtles are planted along the western side boundary of the respondent's front garden and the Magnolia is close to the south-eastern corner of the respondent's dwelling some two metres or more from the applicant's dwelling. 8The applicant has pruned the majority of the branches on the eastern side of the Crepe Myrtles to be well clear of the dividing fence however a small portion of the upper canopy of these trees overhangs a small portion of the western side of the applicant's driveway, garage and a concrete path along the western side of the garage. No part of the Magnolia overhangs the applicant's property. 9At the time of the hearing, the driveway, pathway and guttering appeared in good order. There were some petals from a May bush on the driveway; this shrub was projecting slightly through the metal dividing fence but is not a plant subject to the application. It appears that the respondent's tenants have undertaken some garden maintenance since the application was made. The applicant keeps her property well maintained. 10In applications under Part 2 of the Act, the key jurisdictional test is s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned 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. 11As the applicant is concerned about future damage, 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 - taking into account the particular circumstances of the tress and the site.