Grady v St Vincent

[2014] NSWLEC 1202

Land and Environment Court

New South Wales

Medium Neutral Citation:	Grady v St Vincent & anor [2014] NSWLEC 1202
Hearing dates:	1 October 2014
Decision date:	01 October 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Potential damage to property and risk of injury; Hedge - sunlight and views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mr F P Grady (Applicant) Mr G St Vincent and Ms P St Vincent (Respondents)
Representation:	Applicant: Mr F P Grady (Litigant in person) Respondents: Mr T McGrath (Solicitor) Respondents: Johnson & Sendall
File Number(s):	20458 of 2014

Judgment

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

1. COMMISSIONER: The applicant has resided on his Goulburn property since 1962. The respondents purchased their home about 17 years ago. About 10 years ago the respondents planted a number of trees along their rear southern boundary, close to the dividing fence between the parties' properties. Apart from these trees, a number of others pre-existed their purchase of the property and other trees were planted at other times.

1. The applicant has applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking the pruning of a number of the respondents' trees to a height of between 0.5 and 1.0m above the fence and their subsequent maintenance at that height.

1. The applicant thinks it wrong that anyone can plant trees that overhang someone else's property. In an effort to resolve the matter, the respondents have had a number of trees in their backyard severely pruned.

The Part 2 application

1. The key jurisdictional test in Part 2 is s 10(2). This states:

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.

1. This must be applied to each of the trees the subject of the application.

1. The diagram in the application does not accurately reflect the number of trees on the respondents' property. It was agreed at the hearing that the trees to be considered are:

• Tree 1 - a Bottlebrush growing in the respondents' front garden near the southern corner of their dwelling. This tree is close to the fence and potentially overhangs the applicant's garden bed located along the fence.
• Tree 2 - a Japanese Maple planted about 10 years ago. This tree is located between the southern end of the respondents' rear deck and the dividing fence and within view of the applicant's kitchen window.
• Trees…