Ross v Filactos

[2012] NSWLEC 1315

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ross v Filactos & anor [2012] NSWLEC 1315
Hearing dates:	6 November 2012
Decision date:	06 November 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Potential damage to property; majority of trees on applicant's land
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Freeman v Dillon [2012] NSWLEC 1057
Category:	Principal judgment
Parties:	Mr K Ross (Applicant) Mr C Filactos & Ms H Bitsikas (Respondents)
Representation:	Applicant: Mr Hill-Smith (Solicitor) Respondents: Mr C Filactos & Ms H Bitsikas (Litigants in person) Applicant: Craney Family Solicitors
File Number(s):	20632 of 2012

Judgment

1. COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Macquarie Hills against the owners of trees growing on an adjoining property.

1. The applicant is seeking orders for the removal of nine conifers at the respondents' expense on the basis that branches may fall from the trees, whole trees may fall over, and the potential bushfire hazard posed by them. The applicant's concern is that any of these events could cause damage to his property.

1. In response to the filing of the application, the respondents engaged a surveyor to survey the boundary line, fence line and trees between the parties' properties.

1. The survey shows that all but four trees in question are substantially or wholly on the respondents' land. The majority of the trees are on the applicant's land. The dividing fence between the two properties bears little relationship to the actual boundary.

1. Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land (that is, the applicant's land), or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land. That is, the trees must be on the respondent's land and that land must adjoin the applicant's land.

1. The Court has no jurisdiction to consider trees on an applicant's land.

1. The application contains a photograph of part of a tree resting on the metal dividing fence however there is no caption or any reference to the relevance of that (or any other photograph). The respondents' note that this failure occurred on the Queen's Birthday long weekend in June 2007 [the weekend the Pasher Bulker washed ashore in nearby Newcastle]. The survey shows that the failed section came from a tree growing on the applicant's land. This section of tree has been removed.

1. The applicant also contends that a branch fell from one of the trees but no damage was caused. There was no evidence regarding from which tree the branch fell. Several trees have been cut to large stumps since the application was made.

1. Apart…