Cox v Meiers

[2012] NSWLEC 1215

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cox v Meiers [2012] NSWLEC 1215
Hearing dates:	30 July 2012
Decision date:	30 July 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] future damage or injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Mr Bruce Cox (Applicant) Ms Carmel Meiers (Respondent)
Representation:	Mr Bruce Cox (Litigant in person) (Applicant) Ms Carmel Meiers (Litigant in Person) (Respondent)
File Number(s):	20457 of 2012

Judgment

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

1. COMMISSIONER: This is an application made under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Leura against the owner of three Pinus radiata trees growing on an adjoining property.

1. The applicant and his wife are concerned that the three trees could fall over, particularly in strong winds, and cause significant damage to their property or injury to themselves or anyone else present at the time.

1. The applicant's concern is based largely on the mature age, large size, and species of the trees and relatively recent failures of what he believes to have been very similar trees in Blackheath and Medlow Bath.

1. The applicant considers that the trees have shallow root systems, are growing in moist conditions, and, should one fail, it would take the others with it.

1. The applicant seeks orders for the removal of the trees or reduction to a height (4 m was nominated) that would limit their potential to cause damage.

1. The respondent values the trees and does not want to remove them.

1. In applications made under Part 2, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

1. The guidance decision in Yang v Scerri [2007] NSWLEC 592 considers the 'near future' for damage to be a period of 12 months from the time of the hearing; other decisions have considered the period for risk of injury to be the foreseeable future. In all matters, the particular circumstances of the trees in their immediate environment are the focus of the decision-making process. In this matter I see no reason to vary the commonly applied time periods.

1. If any element of the section is satisfied for any of the trees subject to the application then the Court's power under s 9 to make what, if any, orders should be made, is engaged.

1. The trees were viewed on site. The three trees are well-established mature specimens growing at the rear of the respondent's garden. The respondent has owned her property for 32 years and…