Cayley v Gervay

[2021] NSWLEC 1254

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cayley v Gervay [2021] NSWLEC 1254

Hearing dates:

11 February 2021

Date of orders:

18 May 2021

Decision date:

18 May 2021

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Orders of the Court are:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether trees have caused damage, or are causing damage to applicant’s property – do s (12) considerations outweigh impact of damage – can provisions of the Dividing Fences Act 1991

be invoked for erection of fence

Legislation Cited:

Dividing Fences Act 1991 ss 7, 13(A)

Trees (Disputes Between Neighbours) Act 2006 ss7, 10, 12

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285

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

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard AS4373;2007, Pruning of amenity trees

Category:

Principal judgment

Parties:

Eileen Cayley (Applicant)
Katherine Gervay (First Respondent)
Leonard Gervay (Second Respondent)

Representation:

Counsel:
E Cayley (litigant in person) (Applicant)
J Denina (Solicitor) (Respondents)

Solicitors:
Russell Kennedy Aitken Lawyers, Sydney (Respondents)

File Number(s):

2020/302066

Publication restriction:

No

Judgment

This decision was reserved

COMMISSIONER:

Background

1. The applicant, Ms Cayley, shares a side boundary with a property owned by the respondents, Mr and Mrs Gervay, in Thirroul, in the Illawarra region.

2. The applicant has lived in situ since 1997, and the respondents’ since 2018. Three trees, Syzgium australe (Creek lilly-pilly’s) (the trees) which are in early-maturity, were planted in about 2013 near the common property boundary, which runs from north to south. The applicant’s property is located to the west of the respondent’s.

3. In an attempt to remedy damage that the trees have allegedly caused, are causing, or are likely to cause in the near future, and risk of injury, Ms Cayley made an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act).

4. Ms Cayley, in her affidavit, dated 4 January, 2021, said she advised both Mr and Mrs Gervay, separately, in late 2019 and early 2020 respectively, that the trees were too tall, dropping branches into her property, and were over her house, and needed to be pruned “much smaller”. She estimated their height to be “about 30 metres”, while Mrs Gervay estimated their height as 15 metres.

5. Ms Cayley claims that when Mr Gervay visited some days later, she showed him roots from the trees growing on the edge of her adjacent driveway, noted that she did not want additional root growth, and told him that the trees may need to be removed. Ms Cayley says she also told Mr Gervay that tree roots which Sydney Water had removed from her sewer in late 2018/ early 2019 “must be the lillypilly roots because they are just in front of the sewer on my driveway”.

6. Ms Cayley notes that she…