Browne v Slack-Smith & anor [2013] NSWLEC 1198

Land and Environment Court New South Wales

Medium Neutral Citation: Browne v Slack-Smith & anor [2013] NSWLEC 1198 Hearing dates: 16 October 2013 Decision date: 16 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; tree to be removed Catchwords: TREES [NEIGHBOURS] Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Civil Procedure Act 2005 Dividing Fences Act 1991 Category: Principal judgment Parties: Mr A Browne (Applicant) Mrs S and Mr J Slack-Smith (Respondents) Representation: Applicant: Mr A Browne (Litigant in person) Respondents: Mrs S Slack-Smith (Litigant in Person) File Number(s): 20463 of 2013

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 s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property on St Huberts Island against the owners of a Cypress tree growing on an adjoining property. 2The applicant seeks the following orders: (1)Removal of the Cypress tree and its roots at the respondents' expense. (2)Rectification of: - paving in his driveway, an electricity kiosk, and a section of the dividing fence - also at the respondents' expense. 3The respondents wish to retain the tree as they value it for its shade. 4The applicant tendered a substantial amount of material, much of which dated to 2003, well before the respondents purchased their property in 2008. In an attempt to satisfy the overriding purpose of any civil proceedings in NSW (s 56(1) Civil Procedure Act 2005), that is, to facilitate the just quick and cheap resolution of the real issues in the proceedings, this judgment deals with the jurisdictional tests relevant to the facts of the matter now before the Court. 5In applications under Part 2 of the Act, 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. 6If any of the elements of s 10(2) are met, the Court's powers under s 9 of the Act to make any orders the Court thinks fit are engaged. 7The tree is a mature Cupressus sp. (Cypress) that has been recently heavily lopped. The trunk is wholly located on the respondents' property. Former owners planted it very close to the south-western corner of the property.