Catley & anor v Hajarat & anor [2015] NSWLEC 1306

Land and Environment Court New South Wales

Medium Neutral Citation: Catley & anor v Hajarat & anor [2015] NSWLEC 1306 Hearing dates: 29 July 2015 Date of orders: 05 August 2015 Decision date: 05 August 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see [37] Catchwords: TREES [NEIGHBOURS] Potential damage to property and or injury to persons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Paul and Anita Catley (Applicants) Lisa and Mohammad Hajarat (Respondents) Representation: Applicants: P & A Catley (Litigants in person) Respondents: L & M Hajarat (Litigants in person) File Number(s): 20440 of 2015

Judgment 1. COMMISSIONER: In mid-April 2015 the Central Coast and other parts of the NSW coast were subject to strong winds and heavy rain associated with an 'east coast low'. During this storm event, two of the five trees at the rear of the respondents' property failed. One tree fell to the ground and the other tipped over but was supported by adjoining trees. 2. The applicants, who own the adjoining property at the rear (west) of the respondents' land, have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the remaining three trees on the basis that they may fall onto their property and cause serious damage and or injury. 3. In applications under Part 2, the key jurisdictional test is found in s 10(2) of the Act. 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 all trees the subject of an application. 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…". 2. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the evidence produced by the parties, the characteristics of the tree/s, any history of previous failures, and the circumstances of the site apparent at the time of the hearing. 3. The trees in question are three mature Eucalyptus paniculata (Grey Ironbark). Tree A is the largest specimen and is located on the respondents' rear northern boundary close to the dividing fence with the adjoining property to the north. Tree B is closest to the applicants' property; Tree C is located furthest from the applicants' property. 4. The hearing commenced on the respondents' property (the site) and then proceeded to the applicants' property. The trees were inspected from both properties. With the benefit of seeing the distance between tree C and their property, the applicants withdrew their claim for the removal of tree C. A stormwater pit on the applicants' property was also inspected. While both parties engaged arborists to prepare reports, the arborists did not attend the hearing.