Butcher v Seeman

[2014] NSWLEC 1200

Land and Environment Court

New South Wales

Medium Neutral Citation:	Butcher & anor v Seeman & anor [2014] NSWLEC 1200
Hearing dates:	15 September 2014
Decision date:	26 September 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove the trees is dismissed; orders made for pruning one tree - see [86]
Catchwords:	TREES [NEIGHBOURS]; Damage to property; risk of injury
Legislation Cited:	Trees (Disputes Between neighbours) Act 2006 Conveyancing Act 1919 State Environmental Planning Policy No 44 - Koala Habitat Protection
Cases Cited:	Bellette v Rubin & ors [2014] NSWLEC 1080 Black v Johnson (No 2) [2007] NSWLEC 513 Duncan & anor v Osland [2013] NSWLEC 1136 Hinde v Anderson & anor [2009] NSWLEC 1148 McGuiness v King [2013] NSWLEC 1049 Owners Corporation SP17514 v Owners Corporation SP34633 [2013] NSWLEC 1105 Pastars v Chhabra [2013] NSWLEC 1237 Price v Dougherty [2013] NSWLEC 1089 Robson v Leischke [2008] NSWLEC 152; LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Turner v Garlick [2014] NSWLEC 1159 Yang v Scerri [2007] NSWLEC 592 Yin v D'Hondt & anor [2014] NSWLEC 1040
Category:	Principal judgment
Parties:	N & V Butcher (Applicants) K & C Seeman (Respondents)
Representation:	Applicants: N & V Butcher (Litigants in person) Respondents: Ms K Gerathy (Solicitor) HWL Ebsworth Lawyers
File Number(s):	201317 of 2014

Judgment

1. The applicants are seeking orders for the removal of five trees growing on an adjoining property in Sawtell. They are concerned that any or all of the trees may fail onto their property or that branches falling from any of the trees may cause injury to someone, in particular their children.

1. The applicants have applied under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

1. The respondents do not wish to remove the trees as they value them for the shade and amenity they provide as well as for their biodiversity values.

1. In applications under Part 2 of the Trees Act, the key jurisdictional tests are found in s 10 - Matters of which Court must be satisfied before making an order, which states:

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(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.

1. While the applicants remain dissatisfied with the respondents' actions, I am satisfied that the affidavits tendered by both parties demonstrate that a reasonable effort to reach agreement with the respondents has been made, and therefore s 10(1) is…