Fernandez v Chapman & anor [2017] NSWLEC 1357

Land and Environment Court New South Wales

Medium Neutral Citation: Fernandez v Chapman & anor [2017] NSWLEC 1357 Hearing dates: 5 July 2017 Date of orders: 05 July 2017 Decision date: 05 July 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at (15). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); debris; not satisfied that damage has occurred; risk of damage; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Cavalier v Young [2011] NSWLEC 1080 Category: Principal judgment Parties: Jineth Fernandez (Applicant) Kurt Chapman (First Respondent) Celia Gwen Chapman (Second Respondent) Representation: Maurice Navarrete, Solicitor (Applicant) Kurt Chapman, Litigant in Person (Respondents) File Number(s): 108157 of 2017

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The application 1. Mrs Fernandez ('the applicant') has outbuildings and paved areas near a back corner of her Sadleir property. A smooth-barked Eucalypt ('the tree'), possibly Eucalyptus scoparia, grows on a property to her southwest. 2. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') Mrs Fernandez has applied to the Court seeking orders for removal of the tree and compensation of $4,820 for damage to her property on the following grounds: * Branches have fallen onto the roofs of a shed and what I will call an outdoor patio area, cracking the corrugated fibreglass sheeting, which she has had to replace; * Fallen leaves and twigs collect on the roof material, causing it to degrade, and their weight when wet causes further damage; * Leaves block gutters causing them to overflow onto outdoor areas; * She prevents family members, including children, using the area because falling limbs may injure them; * Debris on paving is degrading it; * A family member has slipped on wet leaves on paving after rain. 1. To support her claim Mrs Fernandez relies on: * Photographs showing cracked roofing sheets, branches that have fallen onto the roof, leaves and twigs on the roof and paving, and her efforts at cleaning leaves and twigs from the roof, guttering and paving; * Invoices for materials and works to repair her roof and fence, although these only amount to half of her compensation claim, which also includes undocumented amounts for monthly maintenance and cleaning supplies; * A letter from a medical doctor explaining health impacts on Mrs Fernandez of cleaning up tree debris, and describing other health conditions that make it difficult for her to do such physical work; * A letter signed by other neighbours supporting removal of the tree. 1. Mrs Fernandez' solicitor, Mr Navarrete, contends that the Court has jurisdiction to make orders because the tree has caused damage to her roof, or, if the Court does not accept that, he says it is evident that overhanging branches will fall and cause damage, or are likely to cause injury. 2. Mrs Fernandez wants all branches overhanging her property removed if the Court does not order removal of the entire tree.