Dumont v Kennedy

[2016] NSWLEC 1021

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dumont v Kennedy [2016] NSWLEC 1021
Hearing dates:	29 January 2016
Date of orders:	29 January 2016
Decision date:	29 January 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Potential damage to property or injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Ms K Dumant (Applicant) Ms C Kennedy (Respondent)
Representation:	Applicant: Ms K Dumant (Litigant in person) Respondent: Ms C Kennedy (Litigant in person)
File Number(s):	20931 of 2015

Judgment

1. The applicant owns a property in Thornleigh. In the front garden of the adjoining property to the northeast is a copse of trees, many of which are likely to be remnants or seedlings of the original forest. One of these trees is a large, mature Angophora costata (Sydney Red Gum). Other trees include Syncarpia glomulifera (Turpentine), other Angophoras, a Eucalyptus sp. and other native and exotic trees.

2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the Angophora closest to her property – identified as T2 in the diagram in the application claim form.

3. These orders are sought on the basis that: branches may fall from the tree onto her property and cause damage or injury; leaves and other debris, in particular the capsules, create a slip hazard on her sloping driveway; and the leaves and other debris are flammable and therefore pose a fire risk, and therefore require regular removal from her guttering.

4. 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.

5. 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…”.

6. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, and evidence or history of past failures, and the circumstances of…