Barnett v Bayliss & anor [2014] NSWLEC 1011

Land and Environment Court New South Wales

Medium Neutral Citation: Barnett v Bayliss & anor [2014] NSWLEC 1011 Hearing dates: 28 January 2014 Decision date: 30 January 2014 Jurisdiction: Class 2 Before: Fakes C Decision: See paragraph [70] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; Hedge - obstruction of sunlight; consideration of discretionary matters Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mrs C Barnett (Applicant) Mrs M & Mr D Bayliss (Respondents) Representation: Applicant: Mrs C Barnett (Litigant in person) Respondents: Ms V Brigden (Barrister) File Number(s): 20760 of 2013

Judgment 1COMMISSIONER: The applicant in this matter has owned a property in Wahroonga for 20 years. She is applying under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of all conifers growing beside the dividing fence that separates the applicant's property from that of the respondents. 2The application under Part 2 is made on the basis that: * Roots from a number of the trees have lifted and displaced brick paving; * In 2013 a tree fell onto the roof and others may fall and cause damage to the applicant's dwelling or injury to anyone in it; * Roots from the trees have lifted and damaged the timber dividing fence; * Roots may cause damage to the footings of the house; * Leaves and other debris accumulate in the gutters leading to mouldy rooms and possible damage to the gutter; and * Overhanging branches may cause damage to the roof and be a potential fire hazard. 3The application made under s 14B Part 2A is based on the contention that the trees severely obstruct sunlight to several windows of the applicant's dwelling as well as the applicant's back garden. 4During the on-site hearing, the applicant, assisted by her husband, advised that in the alternative, she would agree to the trees being pruned to below the level of the guttering of her dwelling. 5The respondents oppose both the removal of the trees and the alternative pruning on the basis that the contended issues do not warrant such drastic action. In the event that the Court orders the removal or pruning of any tree, the respondents maintain that the applicant should contribute half the cost and that a professional arborist carries out the work. 6The respondents would agree to share the cost of repairing the displaced sections of the brick path.