Wilson v Farah & ors [2017] NSWLEC 1006

Land and Environment Court New South Wales

Medium Neutral Citation: Wilson v Farah & ors [2017] NSWLEC 1006 Hearing dates: 10 January 2017 Date of orders: 10 January 2017 Decision date: 10 January 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage; debris in pool Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Marina Wilson (Applicant) Vivian, Anthony, and Kathy Farrah (Respondents) Representation: Applicant: Marina Wilson (Litigant in person) Respondents: Kathy Farrah (Litigant in person/ Agent) File Number(s): 285570 of 2016

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: In December 2014 the applicant purchased her Killarney Heights property. She and her partner moved in in February 2015. The property includes a swimming pool, with cover, in the rear garden. The pool is partially overhung by a mature and established Citharexylum spinosum (Fiddlewood) growing in the corner of the respondents' adjoining property. 2. The applicant contends that debris from the tree, specifically the flowers and leaves, has caused, and could continue to cause, damage to the pool. The applicant submits that the level of maintenance required in order to maintain the pool in a useable state, is more than ordinary. As such, the applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the Fiddlewood at the respondents' expense. 3. The respondents reject this proposal but, in order to mitigate the impact of the shedding, would agree to the removal of overhanging branches – subject to consent being granted by Northern Beaches Council under council's tree protection controls. 4. 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. Injury is not pressed although in correspondence included in the application claim form, the applicant raises concerns about the relationship between the tree species and sinusitis. 2. 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…". 3. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing.