Batten v Williams & anor [2014] NSWLEC 1031

Land and Environment Court New South Wales

Medium Neutral Citation: Batten v Williams & anor [2014] NSWLEC 1031 Hearing dates: 26 February 2014 Decision date: 26 February 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr P Batten (Applicant) Mr P and Mrs B Williams (Respondents) Representation: Applicant: Mr P Batten (Litigant in person) Respondents: Mr P and Mrs B Williams (Litigants in person) File Number(s): 20959 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 owner of a property in Kingfisher Shores against the owners of two trees growing on an adjoining property. 2The applicant is seeking the removal of the trees at the respondents' expense on the basis that the trees have damaged his property and could continue to do so. He is also concerned about potential injury from falling branches or from the development of trip hazards. 3The two trees are Tree 1, a mature Eucalyptus tereticornis (Forest Red Gum), and Tree 2, a mature Erythrina x sykesii (Coral Tree). Both trees are growing in the back yard of the respondents' property. 4Tree 1 is most likely a remnant of the original vegetation and is growing very close to the common side boundary. This tree abuts the dividing fence. 5Tree 2 is towards the rear of the respondents' property some four metres from the boundary. The upper portion of the tree overhangs the applicant's garage by one to two metres. 6In 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 any tree the subject of the application 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. 7As the applicant is concerned in part about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' for damage is a period of 12 months from the date of the hearing. 8Neither party engaged any experts to provide independent expert evidence. The observations regarding the trees are based on the arboricultural expertise I bring to the Court.