Hadfield v Strano & anor [2012] NSWLEC 1290

Land and Environment Court New South Wales

Medium Neutral Citation: Hadfield v Strano & anor [2012] NSWLEC 1290 Hearing dates: 17 October 2012 Decision date: 17 October 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] damage to property; injury; removal sought, evidence of damage and risk of injury insufficient to warrant an order of the Court Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Thornberry & anor v Packer & anor [2010] NSWLEC 1069 Yang v Scerri [2007] NSWLEC 592 Barker v Kryiakides [2007] NSWLEC 292 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: Ms K A Hadfield (Applicant) Mr S and Mrs W Strano (Respondents) Representation: Applicant: Ms K Hadfield (Litigant in person) Respondents: S & W Strano (Litigants in person) File Number(s): 20464 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant in this matter has owned her property in Chatswood for the last 14 months. She is seeking orders for the removal of two Monterey Cypress trees, and their stumps, from the respondents' property on the basis that the trees have caused damage to her property and pose a risk of injury to anyone in her backyard. 2The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 3The respondents have only recently purchased their property but were made aware of the application during the purchasing process. The application had been originally been made against the former owner of their property. The Court upheld a Notice of Motion from the applicant to amend the application to delete the former owner as respondent and to involve the new owners. 4The applicant originally sought orders for the repair of the storm water pipe and retaining wall. However, the applicant has since withdrawn that claim. If the order had been pressed, the applicant would have had to join both the former and new owners of the respondent property. In line with the discussion in Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5], any claim for rectification of damaged property must be made against the owner of the tree at the time the damage occurred.