Campbell v Brentin

[2022] NSWLEC 1527

Land and Environment Court

New South Wales

Medium Neutral Citation:

Campbell v Brentin [2022] NSWLEC 1527

Hearing dates:

22 June 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

See orders at [71].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes; apprehension of additional damage to property; leaves, sticks, and other refuse from trees falling on applicants’ land; is genuine risk of injury foreseeable

Legislation Cited:

Land and Environment Court Rules 2007 r 7.7

Trees (Disputes Between Neighbours) Act 2006

ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Stevens v Russell & anor [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4373-2007 Pruning of amenity trees

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:

Principal judgment

Parties:

Cherie Campbell (First Applicant)
Neil Everson (Second Applicant)
Daniel Brentin (Respondent)

Representation:

C Campbell (Self-represented) (First Applicant)
N Everson (Self-represented) (Second Applicant)
M Khan, (Agent) (Respondent)

File Number(s):

2022/92059

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicants, Cherie Campbell and Neil Everson, live in Windermere Park, a suburb in the Lake Macquarie Area which is characterised by bushland. Eight trees are subject to the dispute, comprising three Angophora costata (Sydney Red Gum)(Angophora), four Eucalyptus acmenoides (White mahogany), and one Cupressus sp (Golden Cypress). Ms Campbell and Mr Everson claim that some of the trees present a high risk, that some have damaged their sewer pipes, and roof, and that, individually and collectively, the trees which overhang their land shed leaves, sticks and other debris which falls or blows onto their roofs, gutters, and other surfaces, creating an unreasonable and costly maintenance burden.

2. Daniel Brentin, the respondent, does not live at his property, but rents it out to tenants. The parties share a side boundary. Since 2015, the applicants have made numerous attempts to contact the respondent, both directly and through his property agent (agent), but the rare replies they did receive from either did not result in any material response from Mr Brentin.

3. From 2017, after a series of sewer pipe blockages resulted from tree roots, the applicants increased the intensity of attempted contact with Mr Brentin, again with little response. Mr Everson first met Mr Brentin in mid-2019 when he attended his rental property to undertake storm damage to a shed. The applicants submitted that Mr Brentin refused to discuss the trees during this visit.

4. According to Mr Everson, in a phone call in November 2019, Mr Brentin advised that he was unemployed and in debt, could not afford to deal with the trees and that they were not a priority.

5. On Australia Day, 2021, Mr Brentin attended his tenanted property with his father. Mr Everson alleged that Mr Brentin climbed one of the trees via a ladder and cut a large overhanging branch which…