Weinert & anor v Metcalfe [2016] NSWLEC 1017

Land and Environment Court New South Wales

Medium Neutral Citation: Weinert & anor v Metcalfe [2016] NSWLEC 1017 Hearing dates: 22 January 2016 Date of orders: 22 January 2016 Decision date: 22 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted in part see [24] Catchwords: TREES [NEIGHBOURS] Damage to property; compensation; extent of damage; actions of the parties; pruning, removal and compensation ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Yang and Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: P and L Weinert (Applicants) J Metcalfe (Respondent) Representation: Applicants: P & L Weinert (Litigants in person) Respondent: J Metcalfe (Litigant in person) File Number(s): 20888 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of two trees (trees 4 and 5), maintenance or removal of another nine trees, and compensation of $4,340 - $540 for an antenna and $3,800 for cleaning and repainting of guttering. 2. These orders are sought on the basis that two of the trees have caused damage to the guttering and the antenna and the other trees may cause damage in the future. The quote for the repainting of the whole of the guttering is based on the difficulty in matching the colour. 3. The trees in question are growing on the respondent's Yerrinbool property close to the dividing fence between the parties' properties. The respondent planted the trees to screen the applicants' two storey dwelling which was constructed sometime after she had purchased her property. 4. The relevant jurisdictional test is found in s 10(2)(a) of the Act. This states that the Court must not make an order under this part unless it is satisfied that a tree the subject of an application has caused, is causing, or could in the near future cause, damage to property on an applicant's land. This must be applied to each of the trees nominated in the application claim form. 5. As the applicants are concerned about future damage, the guidance decision in Yang and Scerri [2007] NSWLEC 592 is relevant. This considers the 'near future' to be a period of 12 months from the time of the hearing. 6. In the absence of any independent arboricultural evidence tendered by either party, with the arboricultural expertise I bring to the Court I make the following observations summarised in Table 1. Tree No. Common name Comments 1 Jacaranda Young, suppressed, small, slow growing 2 Ash Not close to applicants' dwelling 3 Robinia Lopped, epicormic regrowth, close to antenna 4 Poplar Healthy, recently pruned but low branches interfering with antenna 5 Walnut Healthy, low branches close to applicants' property 6 Paulownia Dead 7 Catalpa Not close to applicants' property 8 Box Elder Low branches overhanging guttering at rear 9 Silver Birch Small low branches close to guttering 10 Cherry Not close to applicants' property 11 Catalpa Well away from applicants' property