Pena v Beeche

[2017] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pena & anor v Beeche & anor [2017] NSWLEC 1183
Hearing dates:	10 April 2017
Date of orders:	11 April 2017
Decision date:	11 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential risk of injury; obstruction of sunlight and views; sufficiency of evidence; discretionary matters
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Drewett v Best [2010] NSWLEC 1305 Haindl v Daisch [2011] NSWLEC 1145 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Gabriel and Eileen Pena (Applicants) Martin Beeche and Zoe Coyle Beeche (Respondents)
Representation:	Applicants: Eileen Pena (Litigant in Person) Respondents: Martin Beeche (Litigant in Person)
File Number(s):	375627 of 2016
Publication restriction:	No

judgment

1. COMMISSIONER:   The applicants, who own a property in Bronte, have applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a row of 13 conifers growing on the adjoining property to the west.

2. The orders are sought on the applicants’ contention that the trees have damaged the timber paling dividing fence and could damage a retaining wall on which the fence sits. They are also concerned that the trees, or their branches, could crack and fall during violent storms and thus potentially cause injury to anyone on the applicants’ property. Apart from damage and potential injury, the applicants maintain that the trees block afternoon sunlight to windows of their dwelling and block views from their dwelling.

3. The trees are a row of Leyland Cypress planted about 20 years ago by the previous owners of the respondents’ property.

4. The respondents reject the applicants’ request to remove the trees but would agree to pruning an additional 1.5 m off the top and to trim overhanging branches. Given the proximity of nearby apartment buildings, the respondents value the trees for the privacy they afford their property.

The Part 2 application

5. 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.

6. 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…”.

7. As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592