Hazlewood v Paton

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hazlewood v Paton [2013] NSWLEC 1208
Hearing dates:	29 October 2013
Decision date:	29 October 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury; Hedge - obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mr H Hazlewood (Applicant) Ms N Paton (Respondent)
Representation:	Applicant: Mr H Hazlewood (Litigant in person) Respondent: Ms N Paton (Litigant in person)
File Number(s):	20599 of 2013

Judgment

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

1. COMMISSIONER: The owner of a property in Moss Vale has appealed under both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

1. The applicant is seeking the removal of one dead tree and the reduction by half their size of another five trees that are growing on the respondent's property to the north.

1. As allowed by the Registrar, the applicant is also seeking compensation of a sum of $712 for tree pruning, tip fees, application fees, service of documents, and fence repair.

1. The trees are a row of six mature conifers - cultivars of xCupressocyparis leylandii (Leyland Cypress). An additional tree, a Hakea sp. growing amongst the trees, is not part of the application. The trees are numbered from west to east on the applicant's diagrams; tree 4 is dead. The tree extend about two thirds of the width of the applicant's rear fence line.

1. The respondent does not wish to remove or prune any of the trees as she enjoys the visual amenity they provide. She stated at the hearing that the trees provide habitat for possums and many birds.

The Part 2 application

1. The applicant is concerned that the trees may cause damage to his property or injury to anyone on his land. He is specifically concerned about:

• The movement of the trees in strong winds and the potential for whole or partial tree failure;
• Potential root damage to his sewer pipe which runs some metres from the trees; and
• Their flammable nature and the risk of fire.

1. In his original application claim form, the applicant states that the trees have not caused any damage to date but if they are not attended to, he considers they will certainly cause damage and injury.

1. In material submitted later, and discussed during the hearing, the applicant contends that the roots of the trees damaged the posts of the timber fence that divides the parties' properties. The applicant is claiming compensation of $150 for repairs to the fence.

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 unless it is satisfied that the tree…