Hardy v Fisher

[2013] NSWLEC 1013

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hardy v Fisher & anor [2013] NSWLEC 1013
Hearing dates:	22 January 2013
Decision date:	22 January 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge: obstruction of sunlight; Damage to property; injury to persons
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Freeman v Dillon [2012] NSWLEC 1057 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Ms J Hardy (Applicant) Mr S Fisher (First Respondent) Ms S Tate (Second Respondent)
Representation:	Applicant: Ms J Hardy (Litigant in person) Respondents: Mr S Fisher (Litigant in person)
File Number(s):	20964 of 2012

Judgment

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

1. COMMISSIONER: The applicant in these proceedings owns a residential unit block in North Haven. She has made an application under s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) against the owners of trees growing on an adjoining property to the north.

1. The applicant is concerned that several trees growing relatively close to and overhanging her property could fail (partially or completely) and cause damage to her property or injure anyone on her land. She is also concerned that the trees could catch alight from sparks from a bushfire or be struck by lightning thus potentially causing damage and or injury.

1. The applicant also contends that most of the taller trees on the respondents' property are severely blocking sunlight to windows on the northern side of the unit block.

1. Since the application was made, the respondents have trimmed some of the smaller trees and have offered to thin or remove some of the larger trees if the applicant pays for the work. The applicant does not wish to pay for this work.

The Part 2 application

1. In applications made under Part 2, the key jurisdictional test is found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that the tree concerned 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. This must be considered for all of the trees the subject of the application.

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 to engage the power under [the Trees] Act...".

1. 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…