Lyons v Maybaum & anor [2014] NSWLEC 1055

Land and Environment Court New South Wales

Medium Neutral Citation: Lyons v Maybaum & anor [2014] NSWLEC 1055 Hearing dates: 25 March 2014 Decision date: 25 March 2014 Jurisdiction: Class 2 Before: Fakes C Decision: See paragraph [45] of this judgment Catchwords: TREES [NEIGHBOURS] Potential damage and injury; bush fire issues Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Cox v Meiers [2012] NSWLEC 1215 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 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: Ms J Lyons (Applicant) Mr M Maybaum (First Respondent) Ms Y Downie (Second Respondent) Representation: Applicant: Ms J Lyons (Litigant in person) Respondents: Mr M Maybaum and Ms Y Downie (Litigants in person) File Number(s): 20001 of 2014

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 Trees Act) by the owner of a property in Bullaburra against the owners of seven trees growing on an adjoining property. 2The applicant's primary contention is that the respondents' trees constitute an unacceptable fire hazard with the consequence of possible damage to her dwelling or injury to anyone on her property. 3The applicant is also concerned that Tree 1 - a Cedrus deodara (Himalayan Cedar), may, in strong winds, fall onto her dwelling and that leaves from overhanging branches have damaged the coating on her metal roof and necessitate regular cleaning of the gutters. She states that a branch of the Cedar was, until recently, resting on her electrical service wires thus creating another fire risk. 4She is similarly concerned that leaf drop from overhanging branches from Tree 2 - a Fraxinus angustifolia 'Raywood' (Claret Ash), blocks gutters and the build up of debris is a fire hazard. 5In regards to the remaining trees, these are five recently planted and quite small trees. The applicant contends that given their location and potential size, they too will add to the fire risk. 6As a consequence of these concerns, the applicant is seeking orders for the removal of the Cedar, the pruning of overhanging branches of the Claret Ash and the removal or pruning to 1.8m of the remaining trees. This work is to be at the respondents' expense. 7The respondents question the applicant's reasons for the application and state that they have had the Cedar and Claret Ash regularly pruned over the last nine years.