Evans v McGreal [2017] NSWLEC 1104

Land and Environment Court New South Wales

Medium Neutral Citation: Evans v McGreal [2017] NSWLEC 1104 Hearing dates: 28 February 2017 Date of orders: 28 February 2017 Decision date: 28 February 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Orders made see [31] Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 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: William Evans (Applicant) Steve and Carmen McGreal (Respondents) Representation: Applicant: Mr W Evans (Litigant in person) Respondents: Mr S and Mrs C McGreal (Litigants in person) File Number(s): 2016/363916

judgment 1. COMMISSIONER: About 40 years ago the applicant purchased his Karuah property on which there was a dwelling. Growing on the adjoining property to the west, along the common boundary were, and still are, a row of six Pinus elliottii (Slash Pine). At the time of purchase, the trees were well-established. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders: * Removal of the six pine trees * Rectification of damage to paving, stormwater, slab and other property allegedly caused by the trees * Compensation for costs of cleaning debris off the roof and pruning roots away from his property ($6,200) 1. The orders are sought on the basis that the trees have caused, and will continue to cause, damage to his property and could cause injury to anyone on his property. The applicant is concerned about tripping hazards and falling branches. 2. The applicant is also seeking reimbursement for the money he spent on surveying the location of the trees in relation to the boundary. Dealing with this element of the claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 3. 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 tests in s 10(2) must be applied to each of the trees. 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.