Hosainy v Rashid [2015] NSWLEC 1223

Land and Environment Court New South Wales

Medium Neutral Citation: Hosainy v Rashid [2015] NSWLEC 1223 Hearing dates: 5 June 2015 Date of orders: 05 June 2015 Decision date: 05 June 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage, injury, compensation, tree pruning ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Basera Hosainy (Applicant) Fawaz Rashid (Respondent) Representation: Counsel: Basera Hosainy, litigant in person (Applicant) Fawaz Rashid, litigant in person (Respondent)

Solicitors: - File Number(s): 20198 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a tree located on a property at St Ives. The tree is identified on the application as Tree 1. 2. Ms Hosainy (the applicant) owns and lives in a residential property in the well vegetated suburb of St Ives. The property is located on a steep gradient with steps up from the street frontage to the house and then several steps from the rear of the house to the pool terrace and then more steps up to the rear of the site. 3. In relation to Tree 1, the applicant is seeking orders for the prevention of damage, prevention of injury to a person, payment of costs associated with the carrying out of any order and compensation for damage to property or injury to a person. The site where the tree is growing is owned by Mr and Mrs Rashid (the respondent) and adjoins the rear of the applicant's property. 4. Tree 1 is located close to the rear boundary of the respondent's property and a portion of the canopy overhangs the rear of the applicant's property. 5. The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to a person? 1. Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees.