Elmer v Dutfield

[2018] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elmer v Dutfield [2018] NSWLEC 1192
Hearing dates:	16 April 2018
Date of orders:	16 April 2018
Decision date:	16 April 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); retaining wall; damage and injury; cause of damage not shown; applicant previously made aware of other possible causes; likelihood of failure in the near future not shown; debris; hedge; obstruction of sunlight; obstruction not severe.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Fang v Li & anor [2017] NSWLEC 1503 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Dianne Elmer (Applicant) Christopher Dutfield (First Respondent) Marion Dutfield (Second Respondent)
Representation:	Counsel: D Elmer, litigant in person (Applicant) M Dutfield and C Dutfield, litigants in person (Respondents)
File Number(s):	17/327717
Publication restriction:	No

Judgment

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

Background

1. Mrs Elmer (the applicant) has lived at her Glenhaven property since 1984. To her east, a battle-axe driveway provides access to two properties. A row of cypress trees grows between the driveway and the fence. The Dutfields (the respondents), who live in the property behind Mrs Elmer, accessed via the battle-axe driveway, own the western half of the driveway, including the trees.

2. A stone-and-mortar retaining wall along the boundary supports the land and driveway to Mrs Elmer’s East. Some cracks are present in the wall’s mortar. Mrs Elmer has raised various concerns about the trees with the Dutfields since 1999, but the issues she sees as problematic remain, for her, unresolved.

3. Last year Mrs Elmer applied to the Court pursuant to both Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for seven cypress trees to be removed on the following grounds:

• The trees are causing cracking to the retaining wall, which may collapse;

• The trees are tall and spreading and likely to fall over onto her house or injure somebody;

• Branches grow over her property and touch her dwelling;

• Debris falls and blocks gutters;

• The trees form a hedge and obstruct sunlight to her windows.

4. The Dutfields dispute Mrs Elmer’s claims and see no need for the Court to make any orders.

Framework of the Trees Act

Part 2 claim

5. If I am satisfied that the trees have caused, are causing, or are likely in the near future to cause damage to the applicant’s property, or are likely to injure anyone (s 10(2) of the Trees Act), I have the jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

Part 2A claim

6. If I am satisfied that the trees form a hedge and severely obstruct sunlight to windows of the applicant’s dwelling (s14E(2)(a)(i)), I have the jurisdiction to make appropriate orders (s 14D) after considering a range of…