Kovacic v Smith & anor [2016] NSWLEC 1103

Land and Environment Court New South Wales

Medium Neutral Citation: Kovacic v Smith & anor [2016] NSWLEC 1103 Hearing dates: 11 March 2016 Date of orders: 11 March 2016 Decision date: 11 March 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); future damage, future injury, pruning ordered Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009) Category: Principal judgment Parties: B Kovacic (Applicant) C Smith and S Smith (Respondents) Representation: B Kovacic, litigant in person (Applicant) C Smith and S Smith, litigants in person (Respondents) File Number(s): 21093 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a tree located in the northern Sydney suburb of St Ives. 2. The tree is identified in the application as Tree 1. 3. The applicant (Mr Kovacic) owns the property directly to the rear of the property where the tree is located. 4. Both the applicant and the respondents' (Mr and Mrs Smith) properties are well vegetated with mature trees and shrubs. 5. Tree 1 is located in the rear corner of the respondents' property and a portion of the canopy overhangs the applicant's property. 6. In relation to Tree 1 the applicant is seeking orders for the removal of the tree or the pruning of all large diameter branches that overhang his property. 7. The applicant contends that a fallen limb from the tree has caused damage to his property in the past and that the tree will cause damage in the future or injury to a person. 8. Should the application be dismissed the respondents are seeking reimbursement for the costs of the arboricultural report they commissioned. Commissioners and Acting Commissioners do not have the power to order the payment of legal costs, cost of expert reports and other expenses. Claims for these costs must be made by a Notice of Motion which will be heard and determined by a Judge or Registrar. 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.