Mekhael v Scurville

[2021] NSWLEC 1470

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mekhael v Scurville [2021] NSWLEC 1470

Hearing dates:

13 May 2021

Date of orders:

20 August 2021

Decision date:

20 August 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that the application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused – apprehension of damage – does extent and nature of damage outweigh s 12 considerations – is intervention required

Legislation Cited:

Environmental Planning and Assessment Act 1979

Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

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

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4373:2007 Pruning of amenity trees

Category:

Principal judgment

Parties:

Maryan Mekhael (Applicant)
Dominic Ralph Scurville (First Respondent)
Messalina Mary Scurville (Second Respondent)

Representation:

M Mekhael (Litigant in person) (Applicant)
D Scurville (Litigant in person) (First Respondent)
M Scurville (Litigant in person) (Second Respondent)

File Number(s):

2021/30812

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant, Mrs Mekhael, has occupied her dwelling since about 2010, while the respondents, Mr and Mrs Scurville, have owned their property here since 2006. Between their properties in Quakers Hill, they share a long side boundary which runs from east at the front to west at the rear.

2. A row of four mature Casuarina cunninghamiana (River She Oak) (the trees), about 11 metres in height, is located in the respondents’ property, close and roughly parallel to their rear boundary, and fairly evenly spread along its length of about 15 metres. The specimen at the northern end of this row is growing about 3.5 metres from the common boundary. In her application, Mrs Mekhael also refers to a bush growing closer to the boundary. This is a variety of Schinus sp., which is generally considered to be a weed.

3. Mrs Mekhael lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage that the trees have caused, are causing, and are likely to cause in the near future.

The applicant’s case

4. Mrs Mekhael proposes the Court makes an order for the removal of six trees; three of the four Casuarina’s growing along the respondents’ rear boundary, and one ‘Bush’ (the Schinus sp.). The other two trees indicated on the applicant’s plan indicate two Casuarina’s, T5 and T6, which were previously removed, and stump ground, from near the common boundary.

The respondents’ case

5. Mr and Mrs Scurville also want orders made for the removal of all the trees. They note the high maintenance impost, and cost, to clear gutters and paths, and also claim that the trees represent a risk of injury from falling branches.

The on-site hearing

6. The hearing commenced, with all parties in attendance, in the respondents’ rear yard for an inspection of the…