Tolkin v Speiser & anor [2013] NSWLEC 1225

Land and Environment Court New South Wales

Medium Neutral Citation: Tolkin v Speiser & anor [2013] NSWLEC 1225 Hearing dates: 18 November 2013 Decision date: 26 November 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; debris in gutters; reasonable maintenance Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ms L Tolkin (Applicant) Mr B and Ms S Speiser (Respondents) Representation: Counsel Applicant: Mr B Wilson (Barrister) Respondents: Mr R White (Barrister) Solicitors Applicant: Baron & Associates Respondents: Alexander Maroulis Lawyers File Number(s): 20618 of 2013

Judgment 1COMMISSIONER: Ms Tolkin, the applicant in these proceedings, owns a property in Vaucluse. She has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of up to four Cupressus macrocarpa 'Brunniana' (Golden Brunning Cypress) trees at the respondents' expense and the payment of compensation of $2000 being the applicant's insurance policy excess. 2The application is made on that the basis that during a storm on the evening of 23 February 2013, the applicant's dwelling sustained significant water damage including the collapse of part of a ceiling and associated fittings. The cause of the ingress of water was found to be the blocking of a box gutter by debris from one or more of the Cypress trees. The cost of the repairs was in the vicinity of $25,000. 3Ms Tolkin is concerned that unless the trees are removed, the risk of future water damage remains. 4The respondents, Mr and Ms Speiser, do not wish to remove the trees as they value them for privacy and general amenity however they are content for the applicant to remove any branches that overhang the applicant's property.