Xuereb v Ott [2016] NSWLEC 1409

Land and Environment Court New South Wales

Medium Neutral Citation: Xuereb v Ott [2016] NSWLEC 1409 Hearing dates: 26 August 2016 Date of orders: 26 August 2016 Decision date: 26 August 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: Trees (Disputes Between Neighbours); injury, damage, jurisdictional tests, deadwood, pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Xuereb v Ott [2007] NSWLEC 474 Texts Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: J Xuereb (Applicant) J Ott (Respondent) Representation: J Xuereb, litigant in person (Applicant) L Fermanis (for the Respondent) File Number(s): 16/00182050

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 two mature Eucalyptus moluccana (Grey Box) trees located on the respondent's (Mr Ott) property in the western Sydney suburb of Rooty Hill. 2. The trees are identified in the application as T1 and T2. 3. The applicant, Mr Xuereb, owns the property that adjoins the rear of the property where the trees are located close to the common boundary. 4. The applicant is seeking orders for the removal of the two trees and for the respondent to pay him $300 as a reimbursement for the excess that he contends he was required to pay in relation to a recent insurance claim. 5. The application includes images of fallen limbs that are in contact with various structures in the rear yard. Additionally, the application includes written details of the contended damage caused by the limbs that fell from the trees during a severe storm in January 2016. 6. The respondent wants the trees to remain and is willing to have any required remedial pruning undertaken. 7. When asked at the hearing if he could point out any particular limbs that are causing concern the applicant stated that there are not any particular branches that are of concern. The applicant stated that the proximity of the trees to his rear yard and the size of the trees in conjunction with the recent branch failures were of concern to him. 8. The applicant is concerned that more limbs will fall from the trees and cause damage to property or injury to a person. 9. By way of background, these same two trees and one other were the subject of a past application; Xuereb v Ott [2007] NSWLEC 474. The Orders in 2007 were that one tree in poor health and structural condition was to be removed and that the other two remaining trees were to be pruned by a qualified arborist. The pruning was to limit the branches overhanging the applicant's property and to remove deadwood. The respondent stated that this work was undertaken in early 2008. 10. The respondent has filed with the Court a report prepared by Mr Scott Gatenby of Apex Tree & Garden Experts relating to a ground based inspection of the two trees that was undertaken in July 2016. Mr Gatenby has assessed both trees as being in good health with fair to good form. 11. 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 each of the trees.