Gordon v Sheriff [2017] NSWLEC 1212

Land and Environment Court New South Wales

Medium Neutral Citation: Gordon v Sheriff [2017] NSWLEC 1212 Hearing dates: 26 April 2017 Date of orders: 26 April 2017 Decision date: 26 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [32] Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; adequacy of evidence; tree removal refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Ghazal v Vella (No 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Sheryl Gordon (Applicant) Joan Sheriff (Respondent) Representation: Applicant: Sheryl Gordon (Litigant in person) Respondent: Joan Sheriff (Litigant in person) File Number(s): 43352 of 2017

JUDGMENT 1. COMMISSIONER: The applicant, who owns a property in Tweed Heads West, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of three trees growing on the respondent's property. 2. The orders are sought on the applicant's contention that the trees drop excessive quantities of leaves and other debris, which has damaged pool filters and pumps and other elements of the applicant's property. The applicant submits that the volume of debris requires constant removal and is very stressful. 3. Apart from the debris, the applicant maintains that tree roots have caused damage to tiles around the pool as well as the driveway. The applicant is also concerned that branches have fallen from the trees and have caused damage to the metal dividing fence. She is also worried that further branch failure could injure anyone on her property. Concerns about termites are also raised. 4. The trees the subject of the application are a Corymbia maculata (Spotted Gum) (T1) growing in the respondent's front garden, a Delonix regia (Poinciana) (listed as a Poinsettia in the application form) (T2), and a Eucalyptus saligna (Sydney Blue Gum) growing in the respondent's backyard. 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. 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.