Cuschieri v Fishburn

[2021] NSWLEC 1185

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cuschieri v Fishburn [2021] NSWLEC 1185

Hearing dates:

14 April 2021

Date of orders:

14 April 2021

Decision date:

14 April 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – termite damage not caused by trees – maintenance – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 s 7, s 10(1)(a), s 10(2)(a), Pt 2A s 14B, s 14E(1)(a), s 14E(2)

Cases Cited:

Dooley v Nevell [2007] NSWLEC 715

Hendry v Olsson [2010] NSWLEC 1302

Category:

Principal judgment

Parties:

Rosette Mary Cuschieri (Applicant)
Graham Robert Fishburn (First Respondent)
Kathy Delma Fishburn (Second Respondent)

Representation:

Counsel
C Guirguis (Solicitor) (Applicant)
G Fishburn (Litigant in Person) (Respondents)

Solicitors:
Coutts Lawyers and Conveyancers (Applicant)

File Number(s):

2020/330689

Publication restriction:

No

Judgment

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

Background to the application

1. Rosette Cuschieri (‘the applicant’) has applied to the Court seeking orders pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’). The three trees in her application are on the neighbouring property belonging to Kathy and Graham Fishburn (‘the respondents’).

2. The main issues identified in Ms Cuschieri’s Pt 2 application are: damage caused by termites, overshadowing causing dampness, and branches damaging her shed. She seeks orders for removal of the trees and for compensation of $2,000 for damage to her dwelling.

3. In her Pt 2A application, Ms Cuschieri claims the trees obstruct sunlight to her dwelling, and seeks orders for them to be pruned to 2.5 metres in height.

4. The hearing took place onsite allowing observations of the trees, both properties and the surrounding environment.

The applicant made reasonable effort

5. Under both parts of the Trees Act (at ss 10(1)(a) and 14E(1)(a)) the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the trees’ owners. Ms Cuschieri tried discussing the trees with the respondents. She has written to the respondents, but says she received no response. I have no reason to doubt her efforts have been reasonable.

The trees

6. The trees in Ms Cuschieri’s application are two photinias, several metres tall, and a small unidentified tree approximately three metres tall. They are planted close to the common boundary. The first photinia is close to the rear of the Fishburns’ dwelling, with the other two trees planted in a row along the boundary. The photinias are little more than a metre from Ms Cuschieri’s dwelling, with only a narrow concrete path between it and the boundary fence.

Pt 2 application – damage

7. Ms Guirguis submitted that the termite damage suffered by Ms Cuschieri’s dwelling directly resulted from the presence of the trees. Timber within the walls of Ms Cuschieri’s bathroom and laundry was…