Cvitanovic & anor v Spesyvy & anor [2015] NSWLEC 1365

Land and Environment Court New South Wales

Medium Neutral Citation: Cvitanovic & anor v Spesyvy & anor [2015] NSWLEC 1365 Hearing dates: 7 September 2015 Date of orders: 07 September 2015 Decision date: 07 September 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see [24] Catchwords: TREES [NEIGHBOURS] Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Category: Principal judgment Parties: Zdenko & Renate Cvitanovic (Applicants) Nadia & Victor Spesyvy (Respondents) Representation: Applicants: Z & R Cvitanovic (Litigants in person) Respondents: N & V Spesyvy (Litigants in person) File Number(s): 20479 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Maloney's Beach near Batemans Bay against the owners of trees located on an adjoining property. Neither property is occupied by the owners on a permanent basis. 2. The applicants claim that the respondents' trees have damaged the driveway/ paving on the western side of their dwelling, as well as the dividing fence between the parties' properties. 3. The applicants are seeking Court orders requiring the respondents to pay for the replacement of the damaged paving and 70% of the replacement of the dividing fence. They are also seeking grinding of the roots that damaged the paving, removal of the trees they say have damaged the fence, and reimbursement of the cost of taking preventative action (sawing the concrete and poisoning the roots) to limit further root damage. 4. The respondents are prepared to contribute 50% of the cost of replacing the dividing fence and 50% of the costs of the concrete sawing even though they consider the applicants' actions to be excessive. They do not wish to remove the remaining trees. 5. In applications made under Part 2 of the Act, 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. The test must be applied to each of the trees the subject of the application. Injury is not pressed. 2. The application claim form identifies ten trees. Three trees, T1, T2 and T3 have been removed but their stumps remain. Section 4(4) enables the Act to apply to a tree that has been removed following damage (or injury) that gave rise to an application if the tree was situated wholly or principally on a respondent's land immediately before the damage (or injury) occurred.