Vinski v Wilson

[2023] NSWLEC 1801

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vinski v Wilson [2023] NSWLEC 1801

Hearing dates:

23 August 2023

Date of orders:

23 August 2023

Decision date:

23 August 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – is tree causing damage to applicants’ property – has applicant undertaken reasonable maintenance – relevant s 12 considerations

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2 ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

McPherson v Lake [2017] NSWLEC 1081

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category:

Principal judgment

Parties:

Lucy Vinski, (Applicant)
Alexandra Wilson (Respondent)

Representation:

L Vinski, Self-represented (Applicant)
A Wilson, Self-represented (Respondent)

File Number(s):

2023/195479

Publication restriction:

Nil

Judgment

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

Background

1. Lucy Vinski, the applicant, has owned and occupied a property in Naremburn, on Sydney’s north shore, for about 30 years. Alexandra Wilson, the respondent, purchased her neighbouring property in January 2019.

2. The respondent’s property had a Fraxinus griffithii (Evergreen Ash) (the tree), growing near the rear of the parties’ common side boundary, part of the canopy of which overhung the applicant’s garage, which is located in Ms Vinski’s back corner up against the common boundary.

3. The applicant claimed that the tree was damaging the corrugated iron roof of her garage and was causing an unreasonable maintenance burden from leaves and other debris falling and blowing onto the garage, in light of her elderly status.

4. Ms Vinski requested that the respondent prune and maintain the tree to prevent damage and the requirement for maintenance. Ms Wilson provided evidence of invoices and photographs showing that major branches from the tree overhanging the applicant’s roof were pruned in February 2019 and February 2023, but this failed to satisfy the applicant.

5. Consequently, Ms Vinski made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders to remedy damage the tree had allegedly caused, was causing, or is likely to cause in the near future, and risk of injury the tree presents.

The onsite hearing

6. The hearing was conducted onsite with both parties present, along with Ms Vinski’s son. The tree in the respondent’s rear garden was inspected initially, after which the Court moved to the applicant’s rear yard to inspect alleged damage, and for the parties’ submissions.

7. Ms Vinski proposed the following (summarised) Orders:

1. Respondent to rectify damage to applicant’s garage at rear of property.

2. Respondent to maintain subject tree and her vegetation along the common boundary, on an ongoing basis, to prevent further damage to the garage.

3. Any other order as the Court sees fit.

Jurisdictional requirements

8. With respect to s 7 of the Act, an owner of land may apply to the Court for an order to remedy, restrain or…