Beales v Hamilton [2014] NSWLEC 1257

Land and Environment Court New South Wales

Medium Neutral Citation: Beales v Hamilton [2014] NSWLEC 1257 Hearing dates: 05 December 2014 Decision date: 05 December 2014 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed Catchwords: Trees (Disputes Between Neighbours); damage; injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: R Beales (Applicant) M Hamilton (Respondent) Representation: R Beales, litigant in person (Applicant) M Hamilton, litigant in person (Respondent) File Number(s): 20729 of 2014

Judgment 1This is an application made pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application has been made by Mr Beales, a property owner and resident in Mt Annan, in relation to five trees located on the adjoining property. 2For the purpose of documenting this decision the trees will be referred to in accordance with the numbering used on the site plan that is included in the application. 3Tree 1 (T1) is a Eucalyptus scoparia (Wallangarra White Gum) located in the rear corner of the respondent's (Mr Hamilton) property near the common side boundary with the applicant's property. 4Tree 2 (T2) is a Eucalyptus tereticornis (Forest Red Gum) located centrally within the respondent's rear yard. 5Trees 3 (T3), 4 (T4) and 5 (T5) are Banksia integrifolia (Coastal Banksias) and are located in the respondent's property along the rear side boundary that is common with the applicant's property. 6The applicant is seeking orders for the removal of Tree 1 and Tree 2. When pressed about what orders are being sought in relation to Trees 3, 4 and 5 Mr Beales was unclear and indicated that the Court should make a decision. 7Under section 10 (2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned 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 a person. 8There is no claim that T1 and T2 have caused or are currently causing damage to the applicant's property however the applicant expressed concerns that the trees may cause damage to his property in the future or cause injury to a person. The applicant contends that T1, T2 and T3 are causing damage to his property. 9In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a 'rule of thumb', the appropriate timeframe for 'the near future' is a period of 12 months. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the condition of the tree and circumstances of the site apparent at the time of the hearing.