Cikota v McIntyre

[2012] NSWLEC 1331

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cikota v McIntyre [2012] NSWLEC 1331
Hearing dates:	30 November 2012
Decision date:	30 November 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): application to remove trees dismissed; application to prune trees dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Grossman v Amaro [2012] NSWLEC 1154 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Lang v Huggett [2012] NSWLEC 1110 MacPhail & anor v Ware & anor [2012] NSWLEC 1230
Category:	Principal judgment
Parties:	Rajko Cikota (Applicant) David McIntyre (Respondent)
Representation:	Rajko Cikota (Applicant) [Litigant in person] David McIntyre (Respondent) [Litigant in person]
File Number(s):	20958 of 2012

Judgment

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

1. ACTING COMMISSIONER: In inner-city suburbs such as Redfern many residential lots are relatively small and people must live close to each other. This requires some degree of tolerance, understanding and consideration. Mr and Mrs McIntyre live in a terrace house with a leafy garden containing trees and shrubs. Mr Cikota lives in a dwelling to the west of the McIntyres' property. His daughter lives in a dwelling to the south of the McIntyres' property.

1. The McIntyres' rear garden includes a Jacaranda tree and two palms. Mr Cikota is concerned that fallen leaves and other debris from the Jacaranda are causing damage to his property. He is concerned that falling palm fronds may cause injury to someone in his daughter's property. He is also concerned that the palms may have root problems that will cause them to fall onto and damage his property. He has applied to the Court under s 7 of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for pruning of overhanging branches of the Jacaranda and for removal of the two palms.

1. The McIntyres value the amenity provided by their trees. They do not wish to remove the palms and see no need for further pruning of the Jacaranda.

1. The key jurisdictional test in this matter is at s 10(2) of the Act.

10 Matters of which Court must be satisfied before making an order

(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.

The Jacaranda

1. The Jacaranda is a healthy tree near the McIntyre's rear boundary. Its crown partly overhangs Mr Cikota's property. He has previously sought permission to prune overhanging branches and has at some time pruned several branches over his property.

1. He says leaves and other debris from the tree fall onto the roof of his shed and the roof of his dwelling, blocking the guttering and causing water to overflow. He says leaves fall onto the walkway…