Grosvenor & anor v The Owners Strata Plan No 85601 [2014] NSWLEC 1093

Land and Environment Court New South Wales

Medium Neutral Citation: Grosvenor & anor v The Owners Strata Plan No 85601 [2014] NSWLEC 1093 Hearing dates: 22 May 2014 Decision date: 22 May 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Orders for pruning see paragraph [33] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: D & D Grosvenor (Applicants) The Owners Strata Plan No 85601 (Respondent) Representation: Applicants: D & D Grosvenor (Litigants in person) Respondent: Ms Kowal (Solicitor) Respondent: Bannermans Lawyers File Number(s): 20105 of 2014

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMISSIONER: The applicants' property in Roseville adjoins the rear of a block of residential flat buildings. At the rear of the respondent's property are a number of trees. 2The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the pruning back to the common boundary of the branches of four of those trees. 3The applicants are concerned that as the trees have a history of branch failure, both onto their property and the respondent's property, further failures pose a high risk of future damage to their property and potentially injury to anyone who may be present should a branch fail. The applicants contend that a branch from one of the trees damaged roof tiles on their dwelling. 4In 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 under this Part unless it is satisfied that any of the trees concerned, has caused, is causing, or is likely in the near future to cause, damage to an applicant's property or is likely to cause injury to any person. This must be applied to each tree that is the subject of the application. 5As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the circumstances of the site apparent at the time of the hearing and any relevant evidence or expert opinion. 6The four trees are all mature specimens that were retained when the respondent's property was developed some five to six years ago. Their size and species indicates they are likely to be remnants or seedlings of the original forest. 7This judgment uses the numbering system in the applicants' diagram in the application claim form rather than the numbering used by the respondent's arborist.