Cikota v McIntyre [2012] NSWLEC 1331

Land and Environment Court New South Wales

Medium Neutral Citation: Cikota v McIntyre [2012] NSWLEC 1331 Hearing dates: 30 November 2012 Decision date: 30 November 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): application to remove trees dismissed; application to prune trees dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Grossman v Amaro [2012] NSWLEC 1154 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Lang v Huggett [2012] NSWLEC 1110 MacPhail & anor v Ware & anor [2012] NSWLEC 1230 Category: Principal judgment Parties: Rajko Cikota (Applicant)

David McIntyre (Respondent) Representation: Rajko Cikota (Applicant) [Litigant in person]

David McIntyre (Respondent) [Litigant in person] File Number(s): 20958 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: In inner-city suburbs such as Redfern many residential lots are relatively small and people must live close to each other. This requires some degree of tolerance, understanding and consideration. Mr and Mrs McIntyre live in a terrace house with a leafy garden containing trees and shrubs. Mr Cikota lives in a dwelling to the west of the McIntyres' property. His daughter lives in a dwelling to the south of the McIntyres' property. 2The McIntyres' rear garden includes a Jacaranda tree and two palms. Mr Cikota is concerned that fallen leaves and other debris from the Jacaranda are causing damage to his property. He is concerned that falling palm fronds may cause injury to someone in his daughter's property. He is also concerned that the palms may have root problems that will cause them to fall onto and damage his property. He has applied to the Court under s 7 of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for pruning of overhanging branches of the Jacaranda and for removal of the two palms. 3The McIntyres value the amenity provided by their trees. They do not wish to remove the palms and see no need for further pruning of the Jacaranda. 4The key jurisdictional test in this matter is at s 10(2) of the Act. 10 Matters of which Court must be satisfied before making an order (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.