Atanasovski & anor v Sutu [2017] NSWLEC 1510

Land and Environment Court New South Wales

Medium Neutral Citation: Atanasovski & anor v Sutu [2017] NSWLEC 1510 Hearing dates: 15 September 2017 Date of orders: 15 September 2017 Decision date: 15 September 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [25] Catchwords: TREES [NEIGHBOURS] Damage to property; rectification ordered; tree removal ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Saso Atanasovski & Olivera Atanasovska (Applicants) Yue-Wen Sutu (Respondent) Representation: Applicants: Mr S Atanasovski & Ms O Atanasovska (Litigants in person) Respondent: Mr YW Sutu (Litigant in person) File Number(s): 178780 of 2017

Judgment 1. COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of several trees and shrubs growing on the respondent's property as well as rectification of damage allegedly caused by those trees to property on their land. 2. The applicants are also seeking an order for the reimbursement of the Class 2 application filing fee. In regards to this last request, 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. The orders are sought on the applicants' contentions that the roots from the trees, in particular the large root of a Mulberry tree, have caused, are causing, and could continue to cause damage to the dividing fence, the concrete floor of their garage, and a section of driveway. 4. The respondent contends that he did not plant the trees and that it is unreasonable to pay for damage to a structure he alleges was constructed without consent and which may not have been constructed to reasonable standards. Questions were also raised about the lack of evidence that roots had caused damage to the driveway as well as the time taken for the applicants to notify him of the alleged damage. 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. Injury is not pressed. 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…". In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court's jurisdiction. 3. The applicants have not provided any expert opinion, either arboricultural or engineering. In Exhibit 1, the respondent has included an email from someone called James from TPS – Trees Plants Soil, who apparently inspected the trees and who viewed photographs of the alleged damage. He notes that the roots of what he calls the "Musa", i.e. the Mulberry [correct botanical name being Morus sp.] as being the likely cause of the lifting of the garage slab given the size and proximity of the large root he observed growing from the tree and under the slab (photographs in Exhibit 1). 4. With the arboricultural expertise I bring to the Court, I identified the trees growing at the rear of the respondent's property and against the common diving fence as comprising: a mature, multi-trunked Mulberry, a Cestrum nocturnum, and three Ligustrum lucidum (Broad-leaf Privet). All plants are commonly considered weed species and are easily self-sown from bird droppings. The multi-stemmed form of the Mulberry and larger Privets indicates that the trees may have been cut to ground level in the past but have since suckered. 5. Regardless of the species and or their origin, the trees the subject of the application are trees to which the Act applies as they are wholly situated on the respondent's adjoining land.