Reid v McRae

[2016] NSWLEC 1253

Land and Environment Court

New South Wales

Medium Neutral Citation:	Reid v McRae & anor [2016] NSWLEC 1253
Hearing dates:	21 June 2016
Date of orders:	21 June 2016
Decision date:	21 June 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See paragraph [21]
Catchwords:	TREES [NEIGHBOURS]: Damage, potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Jenni Reid (Applicant) Murray McRae and Jennifer Leathem (Respondents)
Representation:	Applicant: Ms J Reid (Litigant in person) Respondents: Mr M Bull (Agent)
File Number(s):	150638 of 2016

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of three trees growing on an adjoining property. The applicant also seeks payment of her insurance policy excess and reimbursement for the cost of the application filing fee.

2. In regards to the last element of her claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

3. The applicant purchased her Wyoming property in January 2016. Shortly after, a branch from one of the respondents’ trees fell and damaged the roof of her dwelling and the water meter and brought down the electricity service line to her dwelling. The damage to the roof was confirmed and assessed by her insurer.

4. The applicant is concerned that branches may continue to fall and cause further damage to property on her land or injury to anyone on it. She is also concerned about the risk of fire as well as the build-up of leaf litter on her roof and resulting dampness inside her house. Apart from the potential for further branch failures, the applicant considers that vines on the trees may ‘strangle’ the trees predisposing them to failure. The applicant also contends that at least two of the trees have termites. The applicant states that several nearby trees came down in the April 2016 storms and brought down power lines.

5. The respondents do not wish to remove the trees.

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. This must be…