O’Brien v NSW Land and Housing Corporation [2018] NSWLEC 1358

Land and Environment Court New South Wales

Medium Neutral Citation: O'Brien v NSW Land and Housing Corporation [2018] NSWLEC 1358 Hearing dates: 31 May 2018 Date of orders: 12 June 2018 Decision date: 12 June 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: (1) The Application is dismissed. Catchwords: TREES [NEIGHBOURS]: damage to property; potential injury; compensation for cost of reports; extent of damage Legislation Cited: Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Act 2005 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Smith & Hannanford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell & Anor [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Catherine Alice O'Brien (Applicant) NSW Land and Housing Corporation (Respondent) Representation: Solicitors: Litigant in Person (Applicant) R Wilcher, Hicksons Lawyers (Respondent) File Number(s): 2018/74284 Publication restriction: Nil

Judgment 1. ACTING COMMISSIONER: The owner of a property in Newtown has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of three mature Ironbarks (Eucalyptus paniculata) and one Swamp Mahogany (Eucalyptus robusta). 2. The applicant, Ms O'Brien, claims that the respondents' trees are causing damage to her property and while not seeking compensation for damage, she is seeking payment for the cost of reports, by an Arborist and a Structural Engineer, supplied to support her position. 3. I will deal with this matter first as it is most easily disposed of. Commissioners of the Court are not given delegation by the Chief Judge, pursuant to s 36 of the Land and Environment Court Act 1979, to deal with applications for costs or for the provision of reports and the like falling within the definition of costs. If Ms O'Brien wishes to make a separate application to the Court based on the outcome of these proceedings for any costs order, it must be by Notice of Motion which is heard and determined by a Judge of the Court. 4. Ms O'Brien also claims that the trees "are a risk of injury to persons and property", should branches fall on her house or rear yard. She has provided a photograph of a branch that fell in March 2017. 5. The respondent, the NSW Land and Housing Corporation, are represented on site by Mr Robert Wilcher of Hickson's Solicitors and by a Corporation officer. They support the removal of the trees. In Proposed Consent Orders filed in Court on 17 April 2018, they submitted that they would pay for the tree removals, but that the parties pay their own costs in relation to the application. These orders were not made. 6. The trees are growing along and within about 300mm of the respondents' north north-western boundary, thus satisfying the jurisdictional test in s 4(3) of the Trees Act that the trees in question must be situated wholly or principally on [adjoining] land. The applicant's property is to the west south-west of the respondents' property. 7. The Ironbark trees have heights between 13 and 18 metres and the Swamp Mahogany is about 8 metres tall. They have been labelled as trees 1-4 in the Arborists report with tree 1, being the smallest of the three Ironbarks, located closest to the rear of Ms O'Brien's dwelling. The Swamp Mahogany is tree 2. It is positioned about 3 metres to the north-north-west and is suppressed under the second Ironbark (tree 3), with tree 4 closest to the rear of the back yard. The trees' canopy spread is variable and they have been pruned quite heavily away from the applicant's property. They appear to be in good health and vitality, notwithstanding this heavy pruning. 8. Near the rear of the house, the ground level where the trees were planted is about one metre higher than Ms O'Brien's property. Beyond the house, the yard raises up via a series of steps until it is only about 300 mm below the ground level of the trees at the rear, or north north-west. A series of small retaining walls along the boundary, below the fence accommodate these level changes. 9. In response to Ms O'Brien's previous requests for removal, the NSW Land and Housing Corporation has submitted two applications to Marrickville (now Inner West) Council (Council) seeking permission to remove the four trees. On both occasions, Council had refused permission for removal but pruning has been approved and undertaken. 10. In January and February 2018 Ms O'Brien engaged the services of an arborist, Mr David Gowenlock, and an engineer, Mr John Byatt, to inspect her property and provide reports. The reports are included in the Application and claim form [Exhibit A]. Neither report meets the Court's requirement for expert evidence per the Expert Witness Code of Conduct in Schedule 7, Uniform Civil Procedure Rules 2005, Uniform Civil Procedure Act, 2005, but were submitted by Ms O'Brien as supporting evidence. Both consultants list their qualifications. Mr Gowenlock attended the hearing as an observer.