Bousfield v Gallegos

[2017] NSWLEC 1562

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bousfield v Gallegos [2017] NSWLEC 1562
Hearing dates:	20 September 2017
Date of orders:	05 October 2017
Decision date:	05 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [31]
Catchwords:	TREES [NEIGHBOURS] :Damage to property; potential injury; compensation; actions of the parties
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 Johnson v Angus [2012] NSWLEC 192 McCallum v Riodan & anor [2011] NSWLEC 1009 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Yvonne Bousfield (Applicant) Gonzalo Gallegos (Respondent)
Representation:	Applicant: Mr J Bousfield (Agent) Respondent: Mr G Gallegos (Litigant in person)
File Number(s):	2017/173341

JUDGMENT

1. COMMISSIONER:   The applicant, has applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) seeking orders for pruning or relocation of trees growing on the respondent’s Fairfield West property and for payment of a range of costs. The applicant was represented by her son, Mr Jason Bousfield. The respondent was self-represented.

The trees

2. The application claim form includes a diagram indicating the approximate location of nine trees and shrubs growing along the respondent’s northern side boundary. The applicant’s dwelling is to the south. The applicant was unable to identify the species.

3. During the on-site hearing, I identified the trees and shrubs as follows – from east to west:

• T1 – Cestrum

• T2 – Liquidambar

• T3 – Bangalow Palm

• T4 – Norfolk Island Pine

• T5 – Jacaranda

• T6 - Large-leafed Privet

• T7 – Podocarpus

• T8 – Umbrella tree

• T9 – Variegated Duranta

4. At the end of October 2016, after being made aware of a problem with the applicant’s sewer, the respondent sought and obtained permission from Fairfield Council to remove a large Fig tree; the stump was removed with a stump grinder. The respondent stated that there was another large Fig growing on a property that adjoins both his and the applicant’s properties. The owner of that property had the tree, including its stump, removed. Since the application was made, the respondent has removed all branches that were overhanging the applicant’s property.

The Part 2 application.

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.

6. The application claim form (Exhibit A) refers to a letter sent to the respondent on 2 February 2017 which outlines the reasons for seeking action. The letter addresses sections of the Trees Act and presses the applicant’s position. The Part 2 application concerns damage to property and potential injury.

7. In summary, and in regards to damage to the applicant’s property, the applicant contends that:

• roots of the respondent’s trees have,…