Vickers v Rawson-Harris

[2016] NSWLEC 1617

Land and Environment Court

New South Wales

Case Name:	Vickers v Rawson-Harris
Medium Neutral Citation:	[2016] NSWLEC 1617
Hearing Date(s):	19 December 2016
Date of Orders:	19 December 2016
Decision Date:	19 December 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury; sufficiency of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Kay Vickers (Applicant) Cherie Rawson-Harris (Respondent)
Representation:	Applicant: K Vickers (Litigant in person) Respondent: C Rawson-Harris (litigant in person)
File Number(s):	248748 of 2016

JUDGMENT

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

1. COMMISSIONER: The applicant purchased her Bellingen property in 2012. Growing at the rear of the adjoining property was, and still is, a mature Ficus obliqua (Small-leaved Fig). The respondent, who purchased her property 13 years ago thinks the tree is about 60 years old and possible self-sown; however, it is not possible to test that hypothesis.

2. The applicant contends that the roots of the Fig have blocked her sewer on two occasions and, unless the tree is removed, will do so again. She is also concerned that the roots may, at some time in the future, cause damage to the slab on which her house is built. Apart from the root damage, the applicant submits that limbs may fall from the tree, especially in storms, and injure her grandchildren who may be playing in the sand pit or cubby house which are located directly under the tree.

3. As a consequence, the applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the tree at the respondent’s expense. The applicant is also asking for reimbursement of the $968.00 she has spent on unblocking the sewer and pruning the canopy. The invoices in the application claim form show that in February 2014 and July 2016 a plumber removed roots from the applicant’s sewer. The other invoice is for pruning of the overhanging canopy in January 2015.

4. The respondent does not wish to remove the tree as she values it for the shade it affords her property, its visual amenity, and for the habitat it provides for local wildlife. The respondent has no objection to the applicant removing overhanging branches. She also stated that Bellingen Shire Council advised her that there was insufficient justification to remove the tree.

5. 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…