Reilly v Costello [2017] NSWLEC 1599

Land and Environment Court New South Wales

Medium Neutral Citation: Reilly v Costello [2017] NSWLEC 1599 Hearing dates: 23 October 2017 Date of orders: 23 October 2017 Decision date: 23 October 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Pruning ordered see [12] Catchwords: TREES [NEIGHBOURS] :Damage to property; potential injury; palm fronds Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Nil Category: Principal judgment Parties: Kate Reilly (Applicant) Roxanne Costello (Respondent) Representation: Applicant: Ms K Reilly (Litigant in person) Respondent: Ms R Costello (Litigant in person) File Number(s): 2017/242496 Publication restriction: No

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant has applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two Cocos Palms and Bamboo growing on the adjoining property in Rozelle. 2. The orders are sought on the applicant's contentions that fronds and fruit falling from the palms could cause damage to her property or could cause her an injury, particularly as she has impaired vision. She is also concerned that a bamboo culm lodged in an awning and whilst it didn't cause any damage, future failures may. The applicant submits that the bamboo (described as Giant Bamboo) will eventually block out all sunlight and block out sunlight to outside stairs as well as sunlight inside her house. 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. 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. 2. The palms, both Syagrus romanzoffiana (Queen Palm or Cocos Palm), are two of several palms and other trees growing in the respondent's back garden. They are located very close to the common dividing fence; both have fronds that overhang a part of the applicant's property that would be in frequent use. During the on-site hearing, at least one frond was observed to be touching the applicant's roof and there were several dead fronds ready to fall. 3. The respondent does not wish to remove the palms but is content to have them regularly pruned of dead fronds and clusters of fruit. There is evidence of past pruning; it was thought the trees were last pruned about 18 months ago. 4. The majority of the bamboo (which is not Giant Bamboo) growing on the respondent's property is separated from the common boundary by a large clump of Tecomaria capensis (Cape Honeysuckle). There are several culms (stems) relatively close to the boundary which have been pruned. 5. Photographs included in the application claim form show one culm resting on the applicant's dwelling.