Small v Friggieri

[2014] NSWLEC 1033

Land and Environment Court

New South Wales

Medium Neutral Citation:	Small v Friggieri [2014] NSWLEC 1033
Hearing dates:	26 February 2014
Decision date:	26 February 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Pruning ordered - see paragraph [25]
Catchwords:	TREES [NEIGHBOURS] Injury from falling palm fronds, potential damage, leaves in gutters
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mrs E Small (Applicant) Mr M Friggieri (Respondent)
Representation:	Applicant: Mrs E Small (Litigant in person) Respondent: Mr M Friggieri (Litigant in person)
File Number(s):	20920 of 2013

Judgment

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

1. COMMISSIONER: The applicant contends that since August 2013, seven fronds have fallen from two Bangalow Palms growing on the respondent's property onto her property and that of her neighbour. She states that one of these fronds hit her on the wrist and injured her. She is concerned that unless the palms are removed she is at risk of further injury.

1. Apart from the applicant's concerns about the ongoing risk of injury, she is also concerned that the fronds may damage her property, in particular the clothesline located directly below the palms, and the roots may damage an area of concrete paving beneath a covered structure in her courtyard.

1. Further contentions are raised in regards to a Eucalypt also growing in the respondent's property that the applicant contends has been the source of leaves and twigs deposited on her roof and guttering, which has necessitated additional cleaning. The applicant is also seeking orders for the removal of this tree.

1. The application is made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

1. The respondent maintains that the trees are healthy and does not wish to remove them. When he approached Wyong Council, he was advised that the trees were planted as a condition of consent for the development of the residential flat building in which the respondent owns property and that it would be unlikely that council permission would be granted for their removal. He states that the council gave oral advice to the effect that the applicant would be entitled to remove overhanging material. No council officer was present at the hearing to confirm this information.

1. By way of background, the applicant's property is one of two adjoining villa-style units which back onto the rear courtyard of the respondent's unit. The applicant's villa is to the northeast, the adjoining villa is towards the southwest of the respondent's property. All units have adjoining small courtyard gardens.

1. In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states…