Rogers v Relf & anor [2016] NSWLEC 1018

Land and Environment Court New South Wales

Medium Neutral Citation: Rogers v Relf & anor [2016] NSWLEC 1018 Hearing dates: 27 January 2016 Date of orders: 27 January 2016 Decision date: 27 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted in part see [37] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; compensation; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Mr M Rogers (Applicant) Mr C Relf and Ms D Smith (Respondents) Representation: Applicant: Mr M Rogers (Litigant in person) Respondent: Mr D Tyrell (Solicitor)

Solicitors: Respondent: McKees Legal Solutions File Number(s): 21057 of 2015

Judgment 1. COMMISSIONER: The applicant owns a battle axe block in Padstow Heights. The respondents own the adjoining property to the west; along that property's eastern boundary are a number of trees. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of one tree, removal of tree roots, and compensation for damage caused to his property. 3. These orders are sought on the basis that the trees either have caused, or could in the future cause, damage to the applicant's property or injury to anyone on it. 4. The trees the subject of the application are identified in an arborist's report prepared for the respondents by Mr Ross Jackson. The trees are: * Tree 1(T1) Eucalyptus haemastoma (Scribbly Gum) * Trees 2-6 Cupressus sempervirens (Italian Cypress) * Tree 7 Mangifera indica (Mango) 1. At the commencement of the hearing the applicant raised an objection to the lateness of the respondents' evidence (Mr Jackson's report); the material was filed with the court 8 days later than the date specified in the directions. I was informed that an electronic copy was forwarded to the applicant several days earlier. While he accepted he was not unduly prejudiced by the lateness, the applicant raised the matter on principle. I allowed the evidence on the basis that the applicant had received the material in sufficient time to consider its contents and prepare any questions or submissions and that availability of experts can be difficult over the holiday period. 2. In applications under Part 2, 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 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. The applicant is concerned about future damage or injury. 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 characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.