Kitching v Shelley & anor [2016] NSWLEC 1036

Land and Environment Court New South Wales

Medium Neutral Citation: Kitching v Shelley & anor [2016] NSWLEC 1036 Hearing dates: 15 January 2016 Date of orders: 10 February 2016 Decision date: 10 February 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: R Kitching (Applicant) J Shelley and A Shelley (Respondents) Representation: R Kitching, litigant in person (Applicant) J Shelly and A Shelley, litigants in person (Respondents) File Number(s): 20990 of 2015

Judgment 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a Ficus benjamina (Weeping Fig) tree located on the respondents' property at Avoca Beach. 2. The Weeping Fig is located in the eastern corner at the rear of the respondents' (Mr and Mrs Shelley) property adjacent the rear boundary of the applicant's property. 3. The trunk is in excess of 900mm in diameter at the base and the broad canopy is asymmetrical with the larger portion overhanging the rear yard of the property directly to the south of the applicant's property. That property is owned by Mr Jones. 4. The majority of the canopy that was overhanging the applicant's (Mrs Kitching) property has been pruned back at some time in the past few years. 5. I note that a second application in regard to the tree is before the court and was also considered at the on-site hearing. The applicant, Mr Jones, owns the property that adjoins the rear boundary of the Shelley's property and the side boundary of Mrs Kitching's property. 6. Mrs Kitching (the applicant) is seeking orders for the removal of the Weeping Fig tree and the roots within her property. 7. The applicant contends that roots from the tree have damaged the rear boundary fence and the free standing outside toilet. At the hearing the applicant suggested that the slab on which the toilet housing is erected has been displaced by tree roots causing a lean to that structure and that the water supply pipe to the toilet has been damaged by the movement requiring disconnection. The applicant also contends that there will be further damage to the fence and toilet structure in the future. 8. In the application Mrs Kitching also raises concerns that should the canopy regrow back over her rear yard that there is a risk that branches will fall causing damage to the dwelling. 9. 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.