Jones v Shelley & anor [2016] NSWLEC 1037

Land and Environment Court New South Wales

Medium Neutral Citation: Jones v Shelley & anor [2016] NSWLEC 1037 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: Liang & anor v Marsh & anor [2011] NSWLEC1026 Category: Principal judgment Parties: G Jones (Applicant) J Shelley and A Shelley (Respondents) Representation: G Jones, litigant in person (Applicant) J Shelly and A Shelley, litigants in person (Respondents) File Number(s): 20937 of 2015

Judgment 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two Ficus benjamina (Weeping Fig) trees located on the respondents' property at Avoca Beach. 2. The trees are located on the rear boundary of the respondents' (Mr and Mrs Shelley) property adjacent the rear side boundary of the applicant's property. 3. Tree 1 (T1) is a multi-trunked (co-dominant trunks from the base) tree located in the eastern corner of the respondents' property close to the Colorbond fence that runs along the boundary with the applicant's (Mr Jones) property. The trunk is in excess of 900mm in diameter at the base and the broad canopy is asymmetrical with the significantly larger portion overhanging the applicant's rear yard. 4. I note that a second application in regard to T1 is before the court and was also considered at the on-site hearing. The applicant, Mrs Kitching, owns the property that adjoins the eastern rear side boundary of the Shelley's property. 5. Tree 2 (T2) is located in the rear western corner of the respondents' property and comprises a stump from a Weeping Fig that was cut above ground level some time ago and has two epicormic shoots arising from it. One of the shoots has reached a height of several metres and the other snapped off at approximately fence height in a severe storm in April 2015. The shoot that snapped is approximately 100mm in diameter. 6. Mr Jones is seeking orders for the poisoning, removal and stump grinding of T1 and T2 and the removal of roots within his property. 7. Mr Jones contends that roots from T1 have damaged a brick BBQ in the backyard and have grown under the house and were found to be lifting tiles in the bathroom. Additionally, Mr Jones contends that the boundary fence is damaged. In relation to the BBQ and fence Mr Jones suggests that the structures will be further damaged in the near future. 8. In his application Mr Jones also expresses his concern that limbs from T1 will fall causing damage to his property or injury to a person. 9. The provisions of section 10(2) of the 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.