Paull v Robinson

[2017] NSWLEC 1219

Land and Environment Court

New South Wales

Medium Neutral Citation:	Paull v Robinson & anor [2017] NSWLEC 1219
Hearing dates:	27 April 2017
Date of orders:	27 April 2017
Decision date:	27 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; sufficiency of evidence; role of the Court
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Laraine Paull (Applicant) Brian and Wendy Robinson (Respondents)
Representation:	Applicant: Laraine Paull (Litigant in person) Respondents: Brian and Wendy Robinson (Litigants in person)
File Number(s):	22741 of 2017

judgment

1. COMMISSIONER:   The applicant purchased her Robertson home about 10 years ago. Growing on the adjoining property there were, and remain, a number of established trees including a Ginkgo biloba (Maidenhair Tree) and four Camellias.

2. The applicant contends that roots from these trees have caused, and or could in the near future cause, damage to her property, specifically a concrete path along the western side of her dwelling, and to the brickwork of the northwest corner of her dwelling. The dwelling is thought to have been constructed about 30 years ago.

3. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the five trees.

4. The respondents value the trees and do not want to remove them. They dispute the factual basis of the applicant’s claim.

5. The trees are numbered on the application claim form from 1-5; the species were confirmed on site. The trees were planted by the respondents about 40 years ago and are growing in a large garden bed on the eastern side boundary of their property. The trees are: T1 Ginkgo biloba, T2 – Camellia japonica, T3 – Camellia sasanqua, T4 – Camellia japonica, and T5 – Camellia sasanqua. The Ginkgo is relatively small for its age.

6. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

7. Likelihood of injury is not pressed. The tests in s 10(2)(a) must be applied to each the tree the subject of an application.

8. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

9. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the…