Gennusa & anor v Dangerfield & anor [2015] NSWLEC 1194

Land and Environment Court New South Wales

Medium Neutral Citation: Gennusa & anor v Dangerfield & anor [2015] NSWLEC 1194 Hearing dates: 26 May 2015 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part – see [30] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; sufficiency of evidence of causation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Limitations Act 1969 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Moroney v John [2008] NSWLEC 32 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mr Phillip Gennusa (First Applicant) Mrs Sarina Gennusa (Second Applicant) Mrs Toni Dangerfield (First Respondent) Mrs Daune Aartsen (Second Respondent) Representation: Applicants: Litigants in person Respondents: Litigants in person File Number(s): 20181 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicants who own a property in Putney have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of two trees growing on the adjoining property. They are also seeking a sum of $15,560.00 in compensation for damage to their property they allege has been caused by the respondents' trees. 2. The trees are two mature Cinnamomum camphora (Camphor Laurel) growing in the rear yard of the respondents' property and close to the common boundary. The respondents suggest that the trees may be up to 100 years old as they were part of a much older and larger estate that has since been subdivided. They say the trees were planted beside a former tennis court. The respondents do not wish to remove the trees. They contend that the trees were present when the applicants purchased their property some 17 years or so ago and elected to build their dwelling close to the trees. The respondents' evidence (Exhibit 1) includes letters to and from Ryde Council highlighting their concerns about the location of the applicants' dwelling and the severing of roots. 3. The applicants contend that the trees have caused the following damage to property on their land: * Permanent staining and cracking of tiles on a rear balcony; * Lifting and cracking of tiles on stairs leading down from the balcony; * Cracking of brickwork and render on the side of their dwelling; * Destabilisation of part of the common dividing fence; and * Destruction of a TV antenna. 1. The compensation claim includes the following items: * A quote for repair and rectification of the structural work and tiling ($10,010.00); * A quote for the cleaning of gutters ($550.00); * A quote for the antenna ($440.00); * A quote to replace the dividing fence ($4,000.00); and * Reimbursement for the cost of pruning the applicants undertook ($600.00). 1. The applicants have undertaken some of the retiling and repaving themselves. 2. The application is also made on the basis that the trees could cause injury to anyone on their property. The concerns in regards to injury appear to be related to falling branches and the slippery nature of the fruits on the tiles. 3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. These tests must be applied to any tree the subject of an application. 2. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".