Todorovic v Mendham

[2019] NSWLEC 1088

Land and Environment Court

New South Wales

Medium Neutral Citation:	Todorovic v Mendham [2019] NSWLEC 1088
Hearing dates:	27 February 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is granted. See orders at [26].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property, being a driveway, fence and roof – risk of injury – joinder of second applicant – jurisdiction to make orders – consent orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Breen & Anor v Caronna & Anor [2008] NSWLEC 293
Category:	Principal judgment
Parties:	Rada Todorovic (First Applicant) Todorovic Family Pty Ltd (Second Applicant) Garrick Allen Mendham (Respondent)
Representation:	Counsel: N Hammond (Respondent)   Solicitors W Condon, Condon Legal (Applicants) Hones Lawyers (Respondent)
File Number(s):	2018/250635
Publication restriction:	No

Judgment

Background to the application

1. The small gardens of Sydney’s inner suburbs provide limited opportunities to grow large trees. A jacaranda (‘the tree’) in a 6-metre wide Newtown property spreads above several properties. Almost 20 metres across, its crown contributes significantly to amenity of the neighbourhood in this densely built environment. Naturally, its growth has not been without impacts on some surrounding infrastructure.

2. Ms Todorovic (‘the first applicant’) owns a property adjoining the one upon which the tree grows, owned by Garrick Mendham (‘the respondent’). On the grounds of property damage and risk of injury, Ms Todorovic applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for: the tree to be pruned; repairs to property, being a driveway, fencing, roofing and gutters; and the costs of the application.

Joinder of the second applicant

3. A Notice of Motion seeking to join Todorovic Family Pty Ltd as the second applicant was heard by the Court’s Registrar on 12 February and leave was so granted. The property to the west of Ms Todorovic’s is owned by Todorovic Family Pty Ltd (‘the second applicant’). Although it might be more usual for two applications to be made for two separate properties, I find there is nothing in the Trees Act to prevent me hearing this as a single application. To determine this application efficiently and fairly, within the purposes of the Trees Act, I will consider the two properties separately and determine what orders can and should be made as if these were two separate applications. One applicant should not gain access to orders they would otherwise be jurisdictionally denied, if (for instance) damage to the other applicant’s property satisfies a jurisdictional test.

4. Expert evidence submitted after the application was made, as well as oral evidence at the onsite hearing, is relevant to both properties.

Consent orders

5. By the time of the onsite hearing, the parties had prepared proposed consent orders. These orders include the removal of the tree, as opposed to earlier orders for pruning. The expert report of Mr Castor, consulting arborist, advised that the necessary property repairs would require the…