Weeks v Mack

[2013] NSWLEC 1041

Land and Environment Court

New South Wales

Medium Neutral Citation:	Weeks & anor v Mack & ors [2013] NSWLEC 1041
Hearing dates:	8 February 2013
Decision date:	08 February 2013
Jurisdiction:	Class 2
Before:	Moore SC Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; one tree or two; location on boundary; on which property is the tree principally situated
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Awad v Hardy No 2 (2010) NSWLEC 1258 Barker v Kyriakidis [2007] NSWLEC 292 Hind v Anderson & Anor (2009) NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152 Smith and Hannaford v Zhang and Zhou (2011) NSWLEC 29 Zangari v Miller No 2 (2010) NSWLEC 1093
Category:	Principal judgment
Parties:	E & G Weeks (Applicants) C. Mack, S Scanlon, V Bloore (as executors of the estate of Dorothy Mack) (Respondents)
Representation:	Applicants: Mr A Fernon (Barrister) Respondents: Ms P Murray (Solicitor) Respondents: Dibbs Barker
File Number(s):	21029 of 2012

Judgment

1. SENIOR COMMISSIONER: The Trees Disputes Between Neighbours Act 2006 (the Act) provides a statutory regime for dealing with a range of disputes between neighbours concerning trees on one property that impact on the adjoining property. It replaces a complex, expensive and protracted Common Law regime in nuisance that would otherwise have applied to such disputes. The statutory regime is a comparatively simple one but has evolved somewhat since the original enactment of the legislation in 2006 and its coming into effect in early 2007.

1. Relevant to these proceedings, one change to the Act that has evolved over time is that vines which were originally excluded from being encompassed by the definition of tree are now so encompassed as a consequence of the Regulations made under the Act.

1. In this case, the application that was made was made pursuant to s 7 of the Act, by Mr and Ms Weeks, in pt 2 of the Act - a provision that reads:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land or to prevent injury to any person as a consequence of a tree to which this Act applies that is situated on adjoining land.

1. The application, as it was originally made, concerned four elements of vegetation located on the respondents' property. Those elements of vegetation (being referred to in those terms for reasons that will subsequently emerge) comprise:

• a substantial vegetation element of fig, a Port Jackson Fig or Figs at the front of the property;
• a clump of oleanders along the common boundary fence but located undoubtedly on the respondents' property; and
• the stump of a Silky Oak which has a large body of ivy growing on it, ivy which has been substantially pruned prior to these proceedings.

1. During the course of the site inspection undertaken in company with the legal representatives of the parties and two of the respondents' experts, the application for any remedy with respect to the oleander vegetation was abandoned…