Schilling v Kalanoski [2013] NSWLEC 1178

Land and Environment Court New South Wales

Medium Neutral Citation: Schilling v Kalanoski [2013] NSWLEC 1178 Hearing dates: 25 September 2013 Decision date: 25 September 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal refused; dead wood to be removed from tree; fence to be repaired Catchwords: TREES [NEIGHBOURS] Damage to fence; potential damage to sewer; risk of injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: E.G.E. Schilling (Applicant) N. Kalanoski (Respondent) Representation: Applicant: E.G.E. Schilling (Litigant in person) Respondent: N. Kalanoski (Litigant in person) File Number(s): 20494 of 2013

Judgment 1COMMISSIONER: This is an application made under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Figtree concerning trees growing at the rear of an adjoining property. 2The applicant is seeking orders for the removal of two trees, a Eucalypt and a Hill's Fig, and the repair of the timber dividing fence between the parties' properties. 3The application is made on the basis that: * branches falling from the eucalypt could cause damage or injury, or indeed, the same may happen should the whole tree fail; * the trunk of the eucalypt has displaced and damaged the fence; * the roots of the fig may cause damage to the sewer which has been blocked in the past; and * the roots of the fig protrude above the ground and constitute a tripping hazard. 4The respondent does not wish to remove the trees and considers that the cost of repairing the fence, if it is required, should be shared as it is a dividing fence. 5The respondent raised the issue of the location of the tree in relation to the boundary. Section 4(3) of the Act states: (3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land. In this context, 'the land' is adjoining land, or the respondent's land. 6Although there was no survey of the boundary, I am satisfied on the basis of the general location of the rear fence line between other adjoining properties, that the tree is situated principally on the respondent's land; a small portion is likely to be on the applicant's land. 7In applications 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 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. This must be applied to each tree. 8As 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures or other problems, and the circumstances of the site apparent at the time of the hearing. 9As neither party engaged an arborist to give an opinion, the observations on the condition of the trees are based on the expertise I bring to the Court.