Burgess v Varlow

[2015] NSWLEC 1457

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burgess v Varlow [2015] NSWLEC 1457
Hearing dates:	10 November 2015
Date of orders:	10 November 2015
Decision date:	10 November 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS]: Damage to property; debris
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Ms L Burgess (Applicant) Mr R Varlow (Respondent)
Representation:	Applicant: Ms L Burgess (Litigant in person) Respondent: Mr R Varlow (Litigant in person)
File Number(s):	20655 of 2015

Judgment

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

1. COMMISSIONER: The applicant owns a property in Illawong in the Sutherland Shire. She has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Melaleuca bracteata goring on an adjoining property.

2. The respondent does not wish to remove the tree as he values it for the shade and amenity it affords his property.

3. The orders are sought on the basis that the leaf drop from the tree has caused damage to the applicant’s property in particular – rotting of the roof battens, damage to the sarking beneath the tiles, and staining of the garage ceiling. The applicant is also concerned that future damage may be caused to other areas of the roof and to solar panels attached to it.

4. The applicant states in the application claim form that: the falling leaves are so fine they infiltrate under the roof tiles and then fall onto the sarking below the tiles - as she lives in a bushfire zone this is a fire hazard; the tree’s fine leaves clump on top of and in the tile crevices, forming a dam that forces the water backwards and under the tiles; the leaves form a matt in the gutters which require continual cleaning; and, as the tree is to the south of her property, the prevailing winds blow the leaves onto her property.

5. In applications made under Part 2 of the Act, there are a number of jurisdictional tests that must be met before the Court’s powers to make orders under s9 are engaged. 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. Injury is not pressed. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' for damage is a period of 12 months from the date of the hearing.