Duggan v Oldfield

Land and Environment Court

New South Wales

Medium Neutral Citation:	Duggan v Oldfield [2017] NSWLEC 1660
Hearing dates:	20 November 2017
Date of orders:	20 November 2017
Decision date:	20 November 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Tree removal ordered see [12]
Catchwords:	TREES [NEIGHBOURS] : Damage to property; potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Nicholas Duggan (Applicant) Phillip Oldfield (Respondent)
Representation:	Applicant: Nicholas Duggan (Litigant in person) Respondent: Phillip Oldfield (Litigant in person)
File Number(s):	2017/256932
Publication restriction:	No

JUDGMENT

1. COMMISSIONER:   The applicant contends that a mature Eucalyptus saligna (Sydney Blue Gum) growing at the rear of the respondent’s Surry Hills property has caused damage to his bathroom. In addition, the applicant is concerned that branches falling from the tree, as a consequence of what he describes as ‘self-pruning’, could cause damage to other parts of his property or injury to anyone on a number of nearby properties.

2. Given these concerns, the applicant has applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders against the respondent seeking the removal of the tree and its root system, demolition and reconstruction of the bathroom, and reimbursement of all/any costs, including legal costs. In regards to the last element of the claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(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.

4. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

5. Neither party engaged an arborist to provide either an expert report or to attend the on-site hearing. The following observations are based on the arboricultural expertise I bring to the Court and from information provided by the parties. [The tree is identified in the application claim form as Corymbia maculata (Spotted Gum) however, as stated above the tree is a Sydney Blue Gum.]

6. The respondent purchased his property in 1976 and shortly afterwards planted the tree in the corner of his small backyard. He stated that he was surprised at how quickly it grew. On the suggestion of an arborist from the City of…