Giuliani-Bruno v Rumman

[2014] NSWLEC 1069

Land and Environment Court

New South Wales

Medium Neutral Citation:	Giuliani-Bruno v Rumman & anor [2014] NSWLEC 1069
Hearing dates:	16 April 2014
Decision date:	16 April 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	The application is dismissed
Catchwords:	TREES [NEIGHBOURS] Damage; potential injury; no evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	C P Giuliani-Bruno (Applicant) H Rumman (First Respondent) L Merdawi (Second Respondent)
Representation:	Applicant: Ms C P Giuliani-Bruno (Litigant in person) Respondents: Mr H Rumman (Litigant in person)
File Number(s):	20072 of 2014

Judgment

1. COMMISSIONER: The applicant is seeking orders for the removal of all 13 trees growing along the rear of the respondents' property and close to the dividing fence between the parties' properties. She is also seeking orders for the repair of damage to the edge of stencilled concrete at the rear of her property that she contends has been caused by the roots of the respondents' trees. The applicant is also concerned about future damage that may be caused to the pipes that service the pool pump and pool at the rear of her property.

1. Apart from damage, the applicant is also concerned that branches falling from the trees in strong winds may injure her small children. She is also concerned that injury may arise should a branch fail onto the area in which pool chemicals are stored. Apart from injury caused by the branches, the applicant is also concerned that uneven concrete, as a consequence of root damage, could be a tripping hazard.

1. The applicant estimates that repairs to the concrete will cost about $2000. She is also claiming the costs associated with the title search and filing of the application with the Court.

1. In regards to the latter costs, Commissioners do not have the jurisdiction to award such costs. If she wishes to, the applicant can file a Notice of Motion, which will then be heard by a Registrar or Judge of the Court.

1. The application is made pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

1. In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order under this Part unless it is satisfied that any of the trees about which an application is made, 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 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…