Hinidza v Land and Housing Corporation [2016] NSWLEC 1055

Land and Environment Court New South Wales

Medium Neutral Citation: Hinidza v Land and Housing Corporation [2016] NSWLEC 1055 Hearing dates: 16 February 2016 Date of orders: 16 February 2016 Decision date: 16 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted in part – see [27] Catchwords: TREES [NEIGHBOURS] Damage to property; trees removed; adequacy of evidence; notice to respondent; limited compensation payable Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mr S Hinidza (Applicant) Land and Housing Corporation (Respondent) Representation: Applicant: Mr S Hinidza (Litigant in person) Respondent: Mr C Balomatis (Solicitor)

Solicitors: Respondent: Land and Housing Corporation File Number(s): 21022 of 2015

Judgment 1. COMMISSIONER: The applicant claims that three trees growing on the respondent's Granville property have caused damage to his property. 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 the trees, compensation for money spent on rectifying his property and rectification of damage yet to be repaired. 2. The NSW Land and Housing Corporation owns the adjoining land to the north. Along the southern (and common) boundary of that property were four trees which have been removed with the consent of Parramatta City Council. One tree was removed in early 2015 and remaining trees pruned; the remaining trees, as well as others on the property, were removed in early 2016 after the commencement of these proceedings. 3. Section 4(4) of the Act enables the Act to apply to trees that have been removed but which were present when the damage occurred. 4. The applicant claims that the trees have: * blocked and damaged part of the guttering of his dwelling necessitating replacement of it in mid-2013 at a cost of $528.10; * cracked and blocked his sewer requiring its partial replacement at a cost of $4,500.00; and * cracked the concrete floor of his garage; the estimated cost of repair is $5,500.00. 1. The applicant is seeking compensation for this damage as well as reimbursement of the Court's filing fee. In regards to the last element of the claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 2. The on-site hearing commenced on the respondent's property. There are no longer any trees near the common boundary of the parties' properties. The former location of the trees was noted. The three trees, the subject of this application, were two Eucalyptus robusta (Trees 1 and 2) and one Lophostemon confertus (Tree 3). Tree 1 was towards the rear of the property, Tree 2 closest to the applicant's garage, and Tree 1 towards the front of the property. 3. 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…".