Blackman & anor v Christophides & anor [2017] NSWLEC 1072

Land and Environment Court New South Wales

Medium Neutral Citation: Blackman & anor v Christophides & anor [2017] NSWLEC 1072 Hearing dates: 20 February 2017 Date of orders: 20 February 2017 Decision date: 20 February 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application granted see [19] Catchwords: TREES [NEIGHBOURS] Damage; injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Margaret and Philllip Blackman (Applicants) Kyriacos and Maria Christophides (Respondents) Representation: Applicants: M & P Blackman (Litigants in person) Respondents: K & M Christophides (Litigants in person) File Number(s): 356152 of 2016 Publication restriction: No

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicants purchased their Menai property some 7-8 years ago. At that time there were a number of trees growing on the adjoining land to the east, close to the common boundary. 2. The applicants have applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of two trees and the removal of another in accordance with a Tree Assessment Notice of Determination issued to the applicants by Sutherland Shire Council on 3 November 2016. As the respondents did not provide owners' consent for the works to proceed, the applicants filed the Class 2 application with the Land and Environment Court. 3. The Notice of Determination provides provisional consent for: the removal of deadwood and selective pruning of extended lateral growth from T1 up to 15% of the live canopy; removal of deadwood and the lowest lateral branch over the applicants' property from T2; and the removal and replacement of T3. 4. The orders are sought on the basis that branches falling onto their property could cause damage or injury. They also claim that roots from one of the trees have caused damage to their driveway and could continue to do so. 5. 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…". 2. There are three trees which are the subjects of this application. Trees 1 and 2 are two Corymbia gummifera (Red Bloodwood); Tree 3 is a semi-mature Ficus benjamina (Weeping Fig).