Elson v Novek [2015] NSWLEC 1454

Land and Environment Court New South Wales

Medium Neutral Citation: Elson v Novek [2015] NSWLEC 1454 Hearing dates: 23 October 2015 Date of orders: 23 October 2015 Decision date: 23 October 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed. Catchwords: Trees (Disputes Between Neighbours); insect damage; jurisdiction; property damage; dividing fence: application dismissed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Dooley v Newell [2007] NSWLEC 715 Clune v Falconer [2008] NSWLEC 1458 Moase v McMahon [2010] NSWLEC 1123 Smith and Hannaford v Zhang and Zhau [2011] NSWLEC 29 Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Category: Principal judgment Parties: G Elson (Applicant) C Novek (Respondent) Representation: G Elson, litigant in person (Applicant) C Novek, litigant in person (Respondent) File Number(s): 20567 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 mature Celtis australis (Celtis or European Nettle Tree) tree located on the respondent's property at Narellan. 2. The tree is located within a couple of metres of the common boundary fence with the applicant's property and a portion of the canopy overhangs a courtyard that is the primary outdoor open space area for the applicant. 3. The applicant is seeking orders for the removal of the Celtis tree, reimbursement of the costs associated with the maintenance of the dwelling and surrounds and replacement of the common boundary fence with apportioned costs. 4. 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? 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.