Pathikulangara & anor v Davidson & anor [2014] NSWLEC 1163

Land and Environment Court New South Wales

Medium Neutral Citation: Pathikulangara & anor v Davidson & anor [2014] NSWLEC 1163 Hearing dates: 14 August 2014 Decision date: 14 August 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph (18). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: APPLICANTS Joseph Pathikulangara (first applicant) Jayasri Joseph (second applicant)

RESPONDENTS Andrew Davidson (first respondent) Katrina Davidson (second respondent) Representation: APPLICANTS Joseph Pathikulangara (Litigant in person)

RESPONDENTS Andrew and Katrina Davidson (Litigants in person) File Number(s): 20306 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication

The application 1In the northern suburbs of Sydney a large Lemon-scented Gum tree grows in the rear garden of a residential property. It is adjacent to the boundary fence, its broad crown spreading over not only the garden in which it grows but also the gardens, garage and dwelling of a neighbouring property. Mr Pathikulangara and Ms Joseph (the applicants) own the neighbouring property. Over the years they say branches have fallen from the tree, breaking roof tiles on their garage. They have become concerned, since the tree's owners have pruned limbs towards their own dwelling, that the tree is now lopsided and apart from there being a risk of more limb failures, they say the tree may be unstable and may fall onto their property. They have approached the tree's owners, Mr and Mrs Davidson (the respondents), and have been told that they may prune overhanging limbs but only those recommended by the Davidsons' own arborist. This did not satisfy the applicants so they have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for regular pruning of the tree and for compensation for broken roof tiles. The Davidsons dispute that branches from the tree have broken roof tiles and believe that the onus lies with the applicants to prune limbs overhanging their property. 2To determine what orders, if any, are appropriate for the Court to make I must first establish if the jurisdictional tests at s 10 of the Act are satisfied. Firstly, have the applicants made reasonable efforts to reach agreement with the Davidsons? Has notice of the application been given in accordance with the Act? Has the tree caused, is it causing, or is it likely in the near future to cause, damage to the applicants' property, or is it likely to cause injury to any person? 3If the Court's jurisdiction is engaged I must then consider a range of discretionary matters at s 12 of the Act before making appropriate orders. The range of possible orders is set out at s 9 of the Act.