Karadinovski v Weston & anor [2014] NSWLEC 1036

Land and Environment Court New South Wales

Medium Neutral Citation: Karadinovski v Weston & anor [2014] NSWLEC 1036 Hearing dates: 25 February 2014 Decision date: 04 March 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Pruning ordered (see paragraph [38]) Catchwords: TREES [NEIGHBOURS] Damage to property; leaves and mould Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Hinde v Anderson & anor [2009] NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr Z Karadinovski (Applicant) Mr W and Mrs L Weston (Respondents) Representation: Applicant: Mr P Nguyen (Solicitor) Respondents: Mr G Long (Solicitor) Applicant: Phu Nguyen & Associates Solicitors Respondents: Law & Planning File Number(s): 20988 of 2013

Judgment 1COMMISSIONER: The applicant contends that trees growing on the respondents' property in Oatley, have caused or may in the future cause, damage to his property. 2The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the annual pruning of the trees to the boundary line, the costs of cleaning the applicant's roof, and the costs associated with the making of the application. 3In regards to the legal and other costs incurred by the applicant, Commissioners do not have the power to order the payment of such costs. Claims for these costs must be made by way of a Notice of Motion, which is heard by a Judge or the Registrar of the Court. 4The damage the applicant contends has caused or may cause is described as: * Mouldy roof; * Gutters and downpipes blocked by leaves; * Blocked TV dish; * Potential to cause a fire in hot, dry and windy conditions; and * Mould on the house and concrete paths. 5The application concerns seven trees that are growing generally on the northern side of the respondents' property. The applicant's property is to the north. 6The trees are numbered from west to east, from the back garden to the front garden. Trees 1, 2 and 3 are mature Acer negundo (Box Elder). These trees are close to a secondary building at the rear of the applicant's property. Branches from Trees 1 and 3 are just touching the tile roof/guttering of this building. The building and its eaves are very close to the common boundary. 7Trees 4 and 5 are semi-mature/early mature Pyrus calleryana (Ornamental Pear). Tree 5 is closest to the south-western corner of the applicant's dwelling. 8Trees 6 and 7 are Ulmus parvifolia (Chinese Elm) planted on the southern side of the respondents' driveway that runs beside the common side boundary. Tree 6 is the largest tree in contention. According to the respondents, this was an established tree when they purchased their property about 40 years ago. The canopy of Tree 6 extends some metres over the southern portion of the applicant's roof. 9Tree 7 is planted near the front boundary line some 5 metres from the applicant's property. The canopy is about 3.5m away from the south-eastern corner of the applicant's dwelling and only 2 small branchlets appear to overhang the fence. 10In 2010, the applicant obtained approval from Hurstville City Council for minor pruning of small branches of one Chinese Elm, presumably Tree 6, and two Box Elders, probably Trees 1 and 3. In August 2013, the applicant obtained permission to prune overhanging branches of all seven trees back to the boundary line. As is their right to do so, it appears the respondents did not grant permission for the trees to be accessed from their property. 11The respondents' position is that the applicant has not substantiated his concerns. The respondents note the findings of the applicant's arborist (see [28]) and agree that pruning to the boundary line is excessive and not justified. 12In applications under Part 2, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that any of the trees the subject of the application, have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person. Potential injury is not part of the application. Section 10(2) must be applied to each tree. 13As the applicant is concerned about future damage, the guidance decision in in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is generally a period of 12 months from the date of the hearing. 14If any part of s 10(2) is met for any of the trees, the Court's power to make orders under s 9 of the Act is engaged. In determining what, if any, orders should be made the Court must consider a number of discretionary matters under s 12. Section 9 enables the Court to make any orders it thinks fit in order to remedy, restrain or prevent damage to an applicant's property as a consequence of trees growing on adjoining land.