Manton v The Owners Strata Plan No. 40735 [2015] NSWLEC 1496

Land and Environment Court New South Wales

Medium Neutral Citation: Manton v The Owners Strata Plan No. 40735 [2015] NSWLEC 1496 Hearing dates: 20 November 2015 Date of orders: 20 November 2015 Decision date: 20 November 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld. Catchwords: Trees (Disputes Between Neighbours); insects; damage; injury; deadwood; tree pruning ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Clune v Falconer [2008] NSWLEC 1458 Dooley v Newell [2007] NSWLEC 715 Moase v McMahon [2010] NSWLEC 1123 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: H Manton (Applicant) The Owners Strata Plan No. 40735 (Respondent) Representation: H Manton, litigant in person (Applicant) H Kowal, Bannermans Lawyers (Respondent) File Number(s): 20678 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 Eucalyptus saligna (Sydney Blue Gum) tree located on the respondent's property at Northmead. 2. The tree is located in the south western corner of the respondent's property close to the common boundary fence with the applicant's property. 3. The applicant has owned her property since 2009 and the pool located under part of the canopy of the tree was constructed in 2013. 4. The applicant is seeking orders for the removal of the Sydney Blue Gum. 5. The applicant contends that the tree has caused damage to her property and may cause injury to a person. 6. It is noted that the respondent is seeking orders for costs. Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses. Claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or the Registrar. 7. 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 the tree.