The Owners Corporation SP 16349 v Hugo & anor [2012] NSWLEC 1275

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners Corporation SP 16349 v Hugo & anor [2012] NSWLEC 1275 Hearing dates: 4 October 2012 Decision date: 04 October 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application to remove tree dismissed. Orders made for rectification of paving. Catchwords: TREES [NEIGHBOURS] Damage to property; injury; adequacy of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: The Owners Corporation SP16349 (Applicant) G and S Hugo (Respondents) Representation: Applicant: Mr M Williams (Agent) Respondents: Mr G and Mrs S Hugo (Litigants in person) File Number(s): 20689 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 s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Macquarie Fields against the owners of a Pepper Tree (Schinus areira) growing at the rear of an adjoining property. 2The applicant asks the Court to order the removal of the tree at the respondents' expense. This order is sought for the following reasons: * Blockage of a sewer pipe on two occasions; * Future impact of root growth on the sewer pipes; * Fallout of leaves onto the roof necessitating regular cleaning; * The risk that leaves under the eaves could be an accelerant in the event of a fire; * Corrosion of guttering as a consequence of leaf drop; * Bending of the metal dividing fence; * Lifting of pavers; * The risk of injury should a large branch fail; and * Obstruction of sunlight. 3The applicant also seeks orders for the reimbursement of the application filing fee. This is not something that Commissioners have the jurisdiction to award. If the applicant wishes to make a claim it must be done by filing a Notice of Motion to be heard by a Judge or Registrar of the Court. 4I also note that orders are sought with respect to the blocking of sunlight. Part 2 of the Trees Act does not apply and a separate application under Part 2A would be required; however, the applicant would need to satisfy the jurisdictional tests relevant to that Part of the Act. 5The respondents do not wish to pay for the removal of the tree. 6In applications under Part 2, the key jurisdictional test is found in 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. 7As 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 trees and the site. 8The hearing commenced with an inspection of the tree from the respondents' property. It is a mature specimen growing very close to, but not touching, the dividing fence between the parties' properties. Neither party had engaged an arborist to be present. With the expertise I bring to the Court, I observed the tree to be healthy, with a normal amount of internal dead wood, and no obvious structural defects (although I note that the tree had some ivy growing on it). I observed no signs that would lead me to conclude that the tree is unstable.