Marsh & anor v Griffin & anor [2013] NSWLEC 1213

Land and Environment Court New South Wales

Medium Neutral Citation: Marsh & anor v Griffin & anor [2013] NSWLEC 1213 Hearing dates: 13 November 2013 Decision date: 13 November 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal of one tree Catchwords: TREES [NEIGHBOURS] damage to property; injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ghazal v Vella (No 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: K & C Marsh (Applicants) S & B Griffin (Respondents) Representation: Applicants: K & C Marsh (Litigants in person) Respondents: Mr A Kelly (Solicitor) Respondents: RMB Lawyers File Number(s): 20642 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 made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Horsley within the Wollongong local government area. 2The applicants contend that three trees growing on an adjoining property have caused or could potentially cause damage to their property or injury to anyone on their land. 3They are seeking orders for the removal of the three trees and rectification of damage to a fence and pathway, all at the respondents' expense. 4In applications under Part 2, the key jurisdictional tests are 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. 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...". 6As the applicants are 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on, amongst other things, the characteristics of the tree/s, the circumstances of the site apparent at the time of the hearing and the history and evidence of past failures. 7If any of the tests in s 10(2) are met for any of the trees, the Court's powers to make orders under s 9 are engaged. Section 9 enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to an applicant's property or injury to any person. This in turn requires consideration of relevant matters under s 12 of the Act. 8Each of the trees about which the application is made is considered in turn.