Cope v Muralitharan

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cope v Muralitharan [2022] NSWLEC 1733

Hearing dates:

27 October 2022

Date of orders:

27 October 2022

Decision date:

27 October 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondents’ land – damage to driveway – is there genuine risk of injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Pt 2 ss 7, 8, 10, 12, Pt 2A ss 14A, 14C, 14E

Cases Cited:

Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

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

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Jennifer Cope (Applicant)
Muralitharan Gnanasegaram (First Respondent)
Jenanthini Muralitharan (Second Respondent)

Representation:

J Cope, self-represented (Applicant)
J Muralitharan, self-represented (Respondent)

File Number(s):

2022/250436

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: The Applicant, Ms Cope, owns a property in Baulkham Hills, while Mr and Mrs Muralitharan, the Respondents, are her east side neighbour. The Applicant built and occupied her dwelling in 2001, while the Respondents occupied their property in 2015.

2. Three Cupressocyparis leylandii (Leylands Cypress) are growing in the Respondents’ front yard, separating the parties’ properties in the absence of a fence. They are about 6.5 metres (m) in height with a canopy spread of about 2.0 m, and they are planted about 400mm from the common boundary.

3. Ms Cope lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (Trees Act), claiming that roots of the trees have damaged her paved driveway, and are likely to cause further damage in future. The Applicant also claimed that the trees create a genuine risk of injury by blocking visual access to passing traffic and thus increasing the likelihood of a collision with another vehicle upon exiting her driveway.

4. Simultaneously, Ms Cope lodged an application, pursuant to s 14 of Pt 2A of the Trees Act, based on a claim that the trees severely obstruct views from her property.

The applicant’s proposed orders

5. Under Pt 2 of the Trees Act, The Applicant proposes the following order:

1. Removal of 3 Cupressocyparis leylandii trees including their root systems, which form a high hedge along the front boundary between the parties’ properties in Baulkham Hills and are causing damage to the existing paved driveway and obstructing the installation of formwork for a proposed replacement concrete driveway.

6. The Applicant’s proposed order under Pt 2A of the Trees Act is:

1. Removal of 3 Cupressocyparis leylandii trees including their root systems, which form a high hedge along the front boundary between the parties’ properties in Baulkham Hills, causing egress obstruction to our property.

The respondent’s case

7. The Respondents provided a letter to the Court in response to the…