Hyder v Sivanandan

[2014] NSWLEC 1068

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hyder v Sivanandan & anor [2014] NSWLEC 1068
Hearing dates:	16 April 2014
Decision date:	16 April 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage; rectification of a dividing fence; leaves; future damage to a sewer
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 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	A Hyder (Applicant) U Sivanandan (First Respondent) C S Muthurajah (Second Respondent)
Representation:	Applicant: Mr A Hyder (Litigant in person) Respondents: Ms U Sivanandan & Mr C S Muthurajah (Litigants in person)
File Number(s):	20079 of 2014

Judgment

1. COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by the owner of a property in Acacia Gardens against the owners of two trees growing on an adjoining property.

1. The applicant alleges that two Bottlebrush trees (Callistemon sp) have damaged the timber, dividing fence between the parties' properties. He also contends that leaves and branches from the trees have blocked gutters and a downpipe on his property causing consequential overflow and a leak into his dwelling. The applicant is also concerned that the trees' roots may invade storm water and sewer pipes in an easement at the rear of his property and close to the trees.

1. The applicant states that the trees have grown to such an extent that they block his views of the Blue Mountains and obstruct sunlight to the rear of his house and have killed his lawn. As the applicant has not made an application under s 14B part 2A of the Trees Act, the Court cannot consider the view and sunlight issues however, damage to the lawn will be considered.

1. The applicant is seeking compensation of $2915 to include the following works:

• $950 for the cleaning and fungicide treatment of the roof tiles
• $1243 for removal of old fence and replacement of 13m with 1.8m colourbond metal fencing;
• $500 excess for an insurance claim for repairs to a ceiling and cornice said to have been caused by leakage due to blocked gutters; and
• The application filing fee of $220.

1. With respect to the last element of the claim, Commissioners do not have the jurisdiction to award such costs. If the applicant wishes to pursue this, he must file a Notice of Motion, which will then be heard by a Registrar or Judge of the Court.

1. I note that the applicant has not sought formal orders for the removal of the trees, although tree removal is mentioned in answer to question 16 in the Part 2 claim form.

1. In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This section states that the Court must not make any orders…