Kulendran & anor v De Silva & anor [2015] NSWLEC 1035

Land and Environment Court New South Wales

Medium Neutral Citation: Kulendran & anor v De Silva & anor [2015] NSWLEC 1035 Hearing dates: 26 February 2015 Decision date: 26 February 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); future damage, future injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Siva and Subitha Kulendran (Applicants) Mohan and Kashmira De Silva (Respondents) Representation: Applicants: Mr and Mrs Kulendran (litigants in person) Respondents: Mr David Tyrrell (Solicitor) File Number(s): 20983 of 2014

Judgment 1. An application has been made pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application has been made by Mr and Mrs Kulendran, the owners of a property in the suburb of Beecroft. 2. Mr and Mrs Kulendran (the applicants) are seeking orders for the removal of a Callistemon salignus (White Bottlebrush) tree located on an adjacent property to the south. 3. The property where the tree is located is owned by Mr and Mrs De Silva (the respondents). 4. The tree is located adjacent to the common side boundary and some of the canopy overhangs the applicant's property. 5. Mr and Mrs Kulendran are concerned that the tree has the potential to damage their property should large limbs fall from the overhanging canopy or should the tree the tree fail in its entirety. The applicants are particularly concerned about potential damage to the kitchen, first floor bedroom, pool, pool wall, gas heating and alfresco dining area. 6. The applicants are also concerned that injury may be caused to a person should limbs fall from the canopy or should the tree fail in its entirety. 7. Under 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.