Tolkin v Speiser

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tolkin v Speiser & anor [2013] NSWLEC 1225
Hearing dates:	18 November 2013
Decision date:	26 November 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; debris in gutters; reasonable maintenance
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Ms L Tolkin (Applicant) Mr B and Ms S Speiser (Respondents)
Representation:	Counsel Applicant: Mr B Wilson (Barrister) Respondents: Mr R White (Barrister) Solicitors Applicant: Baron & Associates Respondents: Alexander Maroulis Lawyers
File Number(s):	20618 of 2013

Judgment

1. COMMISSIONER: Ms Tolkin, the applicant in these proceedings, owns a property in Vaucluse. She has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of up to four Cupressus macrocarpa 'Brunniana' (Golden Brunning Cypress) trees at the respondents' expense and the payment of compensation of $2000 being the applicant's insurance policy excess.

1. The application is made on that the basis that during a storm on the evening of 23 February 2013, the applicant's dwelling sustained significant water damage including the collapse of part of a ceiling and associated fittings. The cause of the ingress of water was found to be the blocking of a box gutter by debris from one or more of the Cypress trees. The cost of the repairs was in the vicinity of $25,000.

1. Ms Tolkin is concerned that unless the trees are removed, the risk of future water damage remains.

1. The respondents, Mr and Ms Speiser, do not wish to remove the trees as they value them for privacy and general amenity however they are content for the applicant to remove any branches that overhang the applicant's property.

Relevant background

1. In November 2001 Ms Tolkin purchased a newly constructed dwelling in Vaucluse in which she now resides with her husband and three children. At that time, the four Cypress trees were growing on the adjoining property to the southwest, along the common boundary.

1. Mr Tolkin notes in his statement of evidence that when the family moved into the property, the trees were much smaller than their current size. He states at [7]: The Trees overhung our house to a lesser extent. He also notes that the trees provided a screen between the parties' properties.

1. In their individual statements, the Tolkins describe a situation in 2002 when they noticed a small amount of water running down the inside wall of their lounge room. Mr Tolkin arranged for a builder to inspect the property. The builder advised that the leak arose from an overflow of the gutters and that there were too many 'pine needles' in them. He stated that the gutters would need to be cleaned regularly or there will be problems.

1. There is no evidence that this leak was brought to the…