Wedes v Fong [2019] NSWLEC 1183

Land and Environment Court New South Wales

Medium Neutral Citation: Wedes v Fong [2019] NSWLEC 1183 Hearing dates: 21 February 2019 Date of orders: 21 February 2019 Decision date: 21 February 2019 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): apprehension of damage to property, and of injury Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Ward v Glasson & anor [2012] NSWLEC 1350 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Patrick Wedes (First Applicant) Deborah Wedes (Second Applicant) JK Fong (First Respondent) KK Fong (Second Respondent) Representation: P and D Wedes, litigants in person (Applicants) J and K Fong, litigants in person (Respondents) File Number(s): 2018/327125 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: Mr and Mrs Wedes of Connells Point submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the removal and stump grinding of a Glochidion ferdinandi (Cheese tree) (the tree) located in the rear yard of the adjacent neighbouring property. It is located near their shared boundary, which runs from south-east to north-west. 2. The applicants contend that the tree is causing damage to their retaining wall, potentially leading to sudden failure, and that perceived weaknesses in the tree's trunk, and overhanging branches, pose a serious risk of injury. They claim that the trunk is leaning and bending their Colourbond boundary fence (the fence), and also note engaging plumbers to clear roots from their sewer pipe. The Wedes' cite the issue of ongoing maintenance required to clean up leaves and sticks continuously dropping onto their hard surfaces below the tree, along with having to clear gutters, downpipes and tile roof valleys of dead leaves. They also mention the $1100 cost for metal gutter guard for the affected roof lines, and a copy of the receipt for this is included in the application. 3. Mr and Mrs Fong resist tree removal, but have granted permission for pruning, subject to liaison with them with respect to specifications and quality of the works, and to Council consent.