Caltabiano v Veneziani

[2019] NSWLEC 1293

Land and Environment Court

New South Wales

Medium Neutral Citation:	Caltabiano v Veneziani [2019] NSWLEC 1293
Hearing dates:	21 June 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application for the respondents to remove the trees and pay compensation is refused. (2)   Within 30 days of the date of these orders, the respondents are to prune their camellias adjacent to the applicant’s garage so that no part of the camellias is within 30 cm of the applicant’s garage roof, guttering or fascia board.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – garage roof and guttering – no evidence that damage is caused by trees – no tree removal or compensation ordered – minor damage likely – respondents to prune trees
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Category:	Principal judgment
Parties:	Carmela Caltabiano (Applicant) Robert Veneziani (First Respondent) Meredith Veneziani (Second Respondent)
Representation:	S Caltabiano, agent (Applicant) R and M Veneziani, litigants in person (Respondents)
File Number(s):	2019/79182
Publication restriction:	No

Judgment

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

The application

1. Meredith and Robert Veneziani (‘the respondents’) have several small camellia trees growing in the back garden of their Haberfield residence, close to their side boundary and the neighbouring garage belonging to Carmela Caltabiano. 

2. Carmela Caltabiano (‘the applicant’) has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the camellias to be removed and for compensation for as yet unspecified repairs. She also seeks costs for the application. Commissioners do not have the power to award costs. If she wishes to pursue that, Mrs Caltabiano will need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court.

Have the trees caused damage?

3. I observed the situation at this morning’s onsite hearing. Salvatore Caltabiano, the applicant’s son, represented his mother. 

4. Inside Mrs Caltabiano’s garage, near the corner of its southern wall and the eastern wall along the common boundary shared with the respondents, sarking has come away from the roof. Water and debris can enter the garage through a gap beneath tiles above the southern wall. Some debris lay on the floor. There was no other damage. I noted that sarking elsewhere in the garage has deteriorated. 

5. On the garage roof, the lowest edge tile above the southern wall protrudes past the wall face and other edge tiles. Mr Caltabiano says it has been moved by the trees. Mr Veneziani disputes this, saying the tile, which must have been replaced by someone, was not cut properly, and the bedding strip beneath has been removed and not replaced. This has left the gap where debris and water can enter the garage. 

6. I accept Mr Veneziani’s submissions as the most likely. There is no sign that the tile has moved or that the roof has been damaged by the camellias. The opposite edge of the tile rests where it should on the adjacent tile.

7. No orders will be made for compensation. 

Minor damage is likely

8. The trees grow close to the garage, with their upper branches and foliage rubbing against the garage roof guttering. This is likely to result in some damage to the guttering in the near future. This satisfies the jurisdictional test at s 10(2)(a) of the Trees Act and orders can be made. Minor though such damage might be, it may shorten the life of the guttering and is easily prevented by pruning.

Orders

9. As per s 6(3) of the Trees Act, the Court’s orders in this matter remove any requirement the respondents might otherwise have for obtaining consent from Inner West Council for this work.

10. As a result of the foregoing. The Court orders:

1. The application for the respondents to remove the trees and pay compensation is refused. 

2. Within 30 days of the date of these orders, the respondents are to prune their camellias adjacent to the applicant’s garage so that no part of the camellias is within 30 cm of the applicant’s garage roof, guttering or fascia board. 

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 25 June 2019