CK v DB [2012] NSWLEC 1294

Land and Environment Court New South Wales

Medium Neutral Citation: CK v DB [2012] NSWLEC 1294 Hearing dates: 18 October 2012 Decision date: 18 October 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; Hedge - obstruction of sunlight 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 Barker v Kryiakides [2007] NSWLEC 292 Johnson v Angus [2012] NSWLEC 192 Tooth v McCombie [2011] NSWLEC 1004 Category: Principal judgment Parties: Mr C K (Applicant) Ms D B (Respondent) Representation: Applicant: Mr P K (Agent) Respondent: Ms D B (Litigant in person) File Number(s): 20767 of 2012 Publication restriction: Non-publication of anything likely to lead to identification of parties pursuant to r 36.16 pt 40, r 9 of the Uniform Civil Procedure Rules 2005

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Sydney against the owner of trees growing on an adjoining property.

The Part 2 Application 2The applicant contends that two of the trees on the respondent's property (T7 and T8) - both palms - have caused damage to the western end of the double brick wall that forms the dividing fence between the front gardens of the parties' properties. The applicant seeks orders for the removal of these two trees. 3In addition, the applicant seeks orders for the pruning of Trees 2,3,4,5 and 6 to a height of 1.8m and to within the bounds of the respondent's property. These orders are sought on the basis that parts of T4 and T5 overhang the roof and guttering of the applicant's dwelling. 4The key jurisdictional test in applications under Part 2 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. Injury is not pressed in this matter. 5As 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 this matter. 6The trees relevant to this element of the application are clumps of Strelitzia nicolai (Giant Bird of Paradise) interspersed with palms. The Strelitzia are probably trees 2,3, 4 and 5 on the diagram in the application. T6 is a palm to the north of the clumps of Strelitzia. There are other palms close to the Strelitzia. I note that the applicant was somewhat confused as to which trees are the subjects of the application and which are not - due in part to the clumping nature of the Strelitzia and the grouping of the palms. 7These trees are growing on the southern side of the respondent's front garden.