Ferguson & anor v Radnidge & anor [2017] NSWLEC 1668

Land and Environment Court New South Wales

Medium Neutral Citation: Ferguson & anor v Radnidge & anor [2017] NSWLEC 1668 Hearing dates: 16 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [30] Catchwords: TREES [NEIGHBOURS] : Damage to property; potential injury; compensation; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Fang v Li & anor [2017] NSWLEC 1503 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Nil Category: Principal judgment Parties: Andrew & Renee Ferguson (Applicants) Barry & Clare Radnidge (Respondents) Representation: Applicants: A & R Ferguson (Litigants in person) Respondents: B Radnidge (Litigant in person) File Number(s): 279834 of 2017 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The applicants purchased their Sussex Inlet property in 2007. Growing along the common side boundary on the respondent's property was, and remains, a well-established row of trees. The applicants contend that a number of the trees have caused, or could potentially cause, damage to their property or could cause injury to anyone on their land, especially their small children. They note that they have no trees on their property. 2. 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 the trees and the rectification of the damage to their property. The orders are sought at the respondents' cost. 3. The applicants' primary contention is that the trees have caused significant damage to their dwelling to the extent that it will require demolition. In material filed with the court (Exhibit B), amongst other things is a quote for $22,000 for the demolition of their dwelling. 4. The first respondent questioned the evidence that any of the trees have caused the damage to the applicants' house. He also observed that the applicants, being younger, could easily have removed some of the smaller overhanging branches. The respondent stated that his financial circumstances were very limited. 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. These tests must be applied to each of the trees the subject of the application. 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. As the applicants are 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.