Muccino & anor v Ring & anor [2013] NSWLEC 1020

Land and Environment Court New South Wales

Medium Neutral Citation: Muccino & anor v Ring & anor [2013] NSWLEC 1020 Hearing dates: 1 February 2013 Decision date: 01 February 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application to remove tree dismissed; orders made for pruning and for rectification of a fence Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: T and S Muccino (Applicants) J and G Ring (Respondents) Representation: Applicants: T and S Muccino (Litigants in person) Respondents: J and G Ring (Litigants in person) File Number(s): 21092 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 made under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Baulkham Hills against the owners of a tree growing at the rear of an adjoining property. 2The applicants are seeking the removal of the tree, rectification of a panel of fence, and the relaying of pavers that the applicants say have been damaged by the tree's roots. The applicants contend that branches have fallen from the tree and have damaged their property. They are concerned that branches will continue to fall and cause injury to anyone on their property, in particular their grandchildren. During the hearing, the applicants also raised concerns over the failure of the entire tree. 3The respondents do not wish to remove the tree but if ordered to do so consider that the applicants should share the cost of doing so. The respondents value the tree for the shade it provides and for its contribution to local biodiversity. 4In applications made under Part 2, the key jurisdictional test is found in s 10(2) of the Act. This states that the Court must not make an order under this Part 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. 5The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". 6The tree is a healthy mature specimen identified in an arborist's report and other documentation as a Eucalyptus saligna (Sydney Blue Gum). It is located very close to the dividing fence between the two properties. It was present when the parties purchased their properties however it has grown considerably during that time. The tree is highly visible from the surrounding streets and contributes to the landscape character of the area.