Kengike & anor v Jeffrey & anor [2016] NSWLEC 1579

Land and Environment Court New South Wales

Medium Neutral Citation: Kengike & anor v Jeffrey & anor [2016] NSWLEC 1579 Hearing dates: 18 November 2016 Date of orders: 18 November 2016 Decision date: 18 November 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 Category: Principal judgment Parties: L Kengike & G Rose (Applicants) M Jeffrey & A Jeffrey (Respondents) Representation: L Kengike & G Rose, litigants in person (Applicants) M Jeffrey & A Jeffrey, litigants in person (Respondents) File Number(s): 2016/00233409

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 rear corner of the respondents' property in the western Sydney suburb of Erskine Park. The tree location is indicated in the application by a red circle on the diagram for question 2. 2. The subject tree is the only large tree in the rear yard of the respondents' property and is located approximately 1 metre from the common boundary fence with the applicants' property. The majority of the canopy overhangs the applicants' rear yard above the swimming pool. 3. The applicants contend that falling tree branches have caused damage to their pool lining in the past and also stated that they are concerned branches from the tree will fall again and cause further damage to their property or injury to a person in the rear yard. 4. The applicants are seeking orders for the removal of all of the branches that overhang their rear yard. 5. The applicants are also seeking reimbursement for the cost of the court filing fee. Commissioners and Acting Commissioners do not have the power to order the payment of legal costs, costs 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. 6. 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 applicants' property? Is the tree now causing damage to the applicants' property? Is the tree likely in the near future to cause damage to the applicants' 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.