Awad v Hardie (No. 3)

[2012] NSWLEC 1067

Land and Environment Court

New South Wales

Medium Neutral Citation:	Awad v Hardie (No. 3) [2012] NSWLEC 1067
Hearing dates:	8 March 2012
Decision date:	08 March 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed in its entirety.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; no changed circumstances; structural engineer's report; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Awad v Hardie [2010] NSWLEC 1213 Awad v Hardie (No 2) [2010] NSWLEC 1258 Hinde v Anderson and anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Fay Awad (Applicant) Lilian Frances Hardie (Respondent)
Representation:	Fay Awad (Applicant in person) Donna Hardie (Agent for the Respondent)
File Number(s):	21176 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. ACTING COMMISSIONER: In September 2010 this Court gave a decision regarding a Camphor Laurel tree in Kogarah. In Awad v Hardie (No 2) [2010] NSWLEC 1258, Senior Commissioner Moore and myself (Acting Commissioner Galwey) found that there was no evidence that tree roots had caused damage to Ms Awad's dwelling. We also concluded that if gutters were blocked by leaves, leading to water damage to the dwelling, such damage could have been avoided through reasonable maintenance. Similarly, we concluded that any risk of injury from fallen leaves and other small debris from the tree could be avoided through reasonable garden maintenance. The application was dismissed.

1. The decision concluded at [15] with the following note:

"However, we observe, in conclusion, that, in the case of Hinde v Anderson and anor [2009] NSWLEC 1148, the Court dealt with the question as to what might provide a basis of some future application if circumstances concerning the tree were to change and a proper basis for a further application based on that change has been demonstrated to the Court. The circumstances of the principles discussed in Hinde v Anderson also apply in these circumstances."

1. A full reading of Hinde v Anderson makes it clear that a new application may be made to the Court regarding a tree that was the subject of an earlier application under the Act, provided that there are changes to the circumstances concerning the tree.

1. Ms Awad has made a new application with regard to the same Camphor Laurel tree on the basis that it has caused damage to her property and is likely to cause injury. I must determine if there have been any changes to circumstances regarding the tree and its possible contribution to damage or risk of injury.

The application

1. Ms Awad's current application, made under the Trees (Disputes Between Neighbours) Act 2006, concerns the same Camphor Laurel tree and the same damage to her dwelling as did her previous application. She seeks the removal of the tree. In fact, the proposed orders in the application are for the removal of the tree by Kogarah Council, at the respondent's expense. A further order is sought for…