Letts v Nikolaidis

[2015] NSWLEC 1117

Land and Environment Court

New South Wales

Medium Neutral Citation:	Letts v Nikolaidis & anor [2015] NSWLEC 1117
Hearing dates:	23 April 2015
Date of orders:	23 April 2015
Decision date:	23 April 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Part 2 application upheld in part see [34] Part 2A application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; not applicable to future property on the land; Severe obstruction of views not found
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Freeman v Dillon [2012] NSWLEC 1057 Haindl v Daisch [2011] NSWLEC 1145
Category:	Principal judgment
Parties:	Mr D L M Letts (Applicant) Mr L Nikolaidis and Ms B Nikolaidis (Respondents)
Representation:	Counsel: Applicant: Mr D Letts (Litigant in person) Respondents: Mr L Nikolaidis (Litigant in person) Solicitors:
File Number(s):	20085 of 2015

Judgment

1. COMMISSIONER: The applicant owns adjoining lots in Newport. He contends that trees growing on the respondents’ property are causing damage to the roof of his house and garage and other trees severely obstruct his views of Pittwater. He is also concerned that the trees may be a fire hazard and are noisy in windy weather.

2. The applicant has applied under both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking pruning and or removal of the trees. The respondents’ property adjoins both the applicant’s lots and is to the south.

The Part 2 application

3. In applications made under Part 2 of the Trees Act there are a number of jurisdictional tests that must be satisfied before the Court’s powers to make orders under s 9 are engaged.

4. There are two groups of trees that are nominated in the Part 2 application. There is no numbering of individual trees in the application claim form; they are simply identified as cross-hatched groups/rows.

5. The first jurisdictional test is whether the trees the subject of the application are growing wholly or principally on the respondents’ land. While there is some disagreement between the parties as to the actual location of the boundary at its eastern end, the respondents accept that the trees are growing on their property.

6. The key jurisdictional test in Part 2 is satisfaction of s 10(2) which states that the Court must not make an order under this Part unless it is satisfied that any of the trees the subject of the application have caused, are causing, or could in the near future cause damage to the applicant’s property or could cause injury to any person.

7. On the northern side of the respondents’ driveway is a row of mature Cupressus macrocarpa ‘Aurea’ (Golden Cypress). A number of these trees overhang, and have branches touching, the roof of the applicant’s garage and a garden shed. It is not inconceivable, and the first respondent agreed, that the branches resting on the roof of these structures could have caused damage or could in the near future cause damage to them. I am satisfied that s…