Datt & anor v Fevre & anor [2013] NSWLEC 1037

Land and Environment Court New South Wales

Medium Neutral Citation: Datt & anor v Fevre & anor [2013] NSWLEC 1037 Hearing dates: 1 March 2013 Decision date: 01 March 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application under Part 2 dismissed. Application under Part 2A upheld in part; pruning ordered Catchwords: TREES [NEIGHBOURS] Damage to property; obstruction of sunlight. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Clune v Falconer [2008] NSWLEC 1458 Freeman v Dillon [2012] NSWLEC 1057 Immarrata v Mourikis [2007] NSWLEC 601 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: J and M Datt (Applicants) D and L Fevre (Respondents) Representation: Applicants: J and M Datt (Litigants in person) Respondents: D and L Fevre (Litigants in person) File Number(s): 21191 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 both s7 Part 2 and s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Glenwood. 2The applicants are seeking orders for the removal of eight Waterhousia floribunda planted along the rear of the respondents' adjoining property. These orders are sought on the following grounds: * Roots from the trees have caused cracks in the soil and concrete pavement at the rear of their property; * Leaves from the trees have rotted guttering and have caused blockages leading to overflowing; * Falling branches may cause damage to the roof or injure someone; * Leaves are a fire hazard in hot weather; * Insects living in the debris from the trees could bite someone; and * The trees severely obstruct sunlight to windows of their dwelling. 3The applicants are also seeking compensation for the costs of making the application. In this regard, Commissioners do not have the jurisdiction to award such costs. A separate Notice of Motion must be heard by a Judge or Registrar of the Court. 4The respondents do not wish to remove the trees as they and their tenants value them for screening, privacy and shade. 5In January 2013, the respondents reduced the height of the trees by 20% as approved by Blacktown City Council. They have no objection to the applicants pruning overhanging branches. 6The respondents purchased their property in 2002. The trees are thought to have been planted by the developer shortly after the respondents' two-storey dwelling was constructed in 1997. The trees are at approximately 2.5 m spacings along the back fence on the southern side of the respondents' property. According to the respondents, the same developer/ landscaper planted a similar row of the same species on the property to their east. 7The applicants purchased their property in 1999. In 2010 they extended their dwelling some 4-5m to the north by constructing a single storey sunroom, and associated awnings, at the rear of the dwelling. To the east and west of the sunroom are relatively large covered paved areas of coloured, stencilled concrete. The roof extends to the north by about 1m and covers paving that connects the eastern and western areas. The northern edge of the paving is approximately 2.5m or so from the dividing fence between the parties' properties and therefore the trees. 8The trees overhang a rough garden bed between the paving and the fence. There are at least three fruit trees growing in this garden bed.