Kentish v Maurer

[2015] NSWLEC 1393

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kentish v Maurer & anor [2015] NSWLEC 1393
Hearing dates:	23 September 2015
Date of orders:	23 September 2015
Decision date:	23 September 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 18.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; debris; orders for tree pruning.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057
Category:	Principal judgment
Parties:	Paul Kentish (Applicant) Kasey Maurer (First Respondent) Glenn Davis (Second Respondent)
Representation:	Paul Kentish, litigant in person (Applicant) Kasey Maurer and Glenn Davis, litigants in person (Respondents)
File Number(s):	20602 of 2015

Judgment

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

Background

1. Mr Kentish (‘the applicant’) has applied to the Land and Environment Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the removal of two trees within a neighbouring property, on the grounds that they may cause damage or injury, and because they drop debris such as leaves and twigs onto his property.

2. In his application Mr Kentish sought the removal of one of these trees also for the reason that it obstructs views from his dwelling, under Part 2A of the Trees Act. When I explained that Part 2A only applies to trees that form a hedge, and he did not think that the neighbouring trees formed a hedge, he did not wish to press that part of the application.

3. Mr Kentish provided photographs to demonstrate that the two trees were not present when his dwelling was constructed in 1984.

4. Ms Maurer and Mr Davis (‘the respondents’) did not plant the trees, which were already established when they purchased their property five years ago. They have offered to prune the trees but do not wish to remove them.

Jurisdictional framework

5. Before making any orders I must be satisfied, for each tree, that it “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” (s 10(2) of the Trees Act).

Have the trees caused, are they causing, or are they likely in the near future to cause, damage to the applicant’s property? Or are they likely to cause injury?

Applicant’s submissions

6. Mr Kentish submits that the trees shed a significant amount of debris: leaves, twigs, and small and large branches. He pointed out holes in his roof guttering near the trees. While he concedes that the state of the gutters is partly due to their age and weathering, he argues that leaf material sitting in the gutters has at least contributed to their condition. He says although most branches that have fallen are dead, one live branch fell some years ago, before the respondents purchased their property, and damaged roof tiles. No evidence of this was…