Lobasso v Jin

[2023] NSWLEC 1543

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lobasso v Jin [2023] NSWLEC 1543

Hearing dates:

15 June 2023

Date of orders:

22 September 2023

Decision date:

22 September 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) See orders at [57]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to garden edging – apprehension of further damage and of injury – leaves and bracts falling onto veranda roof and gutters

Legislation Cited:

Dividing Fences Act 1991, s 7

Trees (Disputes Between Neighbours) Act 2006,

Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, July 2016

Standards Australia, AS4373-2007: Pruning of amenity trees, March 2007

Category:

Principal judgment

Parties:

Dianne Beverly Lobasso (Applicant)
Nansong Jin (First Respondent)
Kejia Li (Second Respondent)

Representation:

D Lobasso (Self-represented) (Applicant)
N Jin (Self-represented) (First Respondent)
K Li (Self-represented) (Second Respondent)

File Number(s):

2023/91028

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Dianne Beverly Lobasso who proposes that the Court orders the removal of trees located in an adjacent neighbouring property.

Background

2. Ms Lobasso (the applicant), and Mr Jin and Ms Li (the respondents), share a side boundary between their Carlingford properties, which extend from north-west at the street entrance to south-east at the rear. The applicant has occupied her property since 1997, and the respondents, since 2013.

3. Two trees growing in the respondents’ back yard in a narrow garden between an inground fibreglass swimming pool and a timber paling common boundary fence are the subject of the application. Tree 1 (T1) is a Cupressus macrocarpa (Monterey Cypress) and Tree 2 (T2) is a Bougainvillea cultivar (Bougainvillea), a woody vine which is classified as a tree for the purposes of the Trees Act.

4. The side wall of the applicant’s dwelling was parallel with the common boundary and about 1.6 metres (m) distant, while the thick base of the mature Bougainvillea was located about 4 m east of the south-east corner of the applicant’s raised back veranda. T1 was located about 2 m south-east of T2, and both trees were close to the boundary.

5. Photographs provided with the application showed the Bougainvillea growing into and throughout the canopy of T1, reaching a height of around 9 m and weighing heavily on branches over the applicant’s land.

6. Ms Lobasso submitted that Bougainvillea canes growing throughout the canopy of the Cypress tree caused damage to the boundary fence, and thickening roots of T1 uplifted and cracked concrete edging of a garden near the boundary. The applicant claimed that leaves and bracts (flowers) from T2 clogged roof gutters and caused secondary ceiling damage, and that the trees’…