Zanatta v Erby

[2008] NSWLEC 76

Land and Environment Court

of New South Wales

CITATION:	Zanatta v Erby [2008] NSWLEC 76
PARTIES:	APPLICANT Ms Zanatta RESPONDENTS Mr & Ms Erby
FILE NUMBER(S):	21170 of 2007
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Wyong Shire Council v Shirt (1980) 146 CLR 40
DATES OF HEARING:	11 February 2008
EX TEMPORE JUDGMENT DATE:	11 February 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr J Fisicaro, solicitor John Fisicaro & Co RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

11 February 2008

21170 of 2007 Zanatta v Erby and Anor

JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes between Neighbours) Act 2006 made by Ms Zanatta concerning a Liquidambar tree (Liquidambar styraciflua) located on the property to the north owned by Mr and Ms Erby. We have had the advantage of inspecting the tree from both sides of the fence and looking, from Ms Zanatta’s side of the fence, at the damage which is claimed to warrant an order for removal of the tree.

2 We are satisfied that the tree has caused damage to the fence. That enlivens the jurisdiction of the Court pursuant to the first of the tests under section 10(2)(a) of the Act. We then turn to consider whether as a matter of discretion the damage is sufficiently serious to warrant the Court making orders.

3 As part of considering this issue, we have heard evidence from Mr and Ms Erby and Ms Zanatta concerning several specific elements of damage to the fence – particularly a number of the loose bricks at the top of the fence a little to the east of the tree, one of which has fallen and being to displaced to the foot the fence on the Erby side and with respect to at least one brick and a perpend in the vicinity of the tree somewhat further to the west towards the base of the fence where Mr Erby says that he has heard and observed activities consistent with Ms Zanatta scraping mortar out of a joint.

4 We have inspected that joint. We have heard evidence from Ms Zanatta, through Mr Fisicaro, her solicitor, acting as her interpreter, that she denies any intervention with that element of the brickwork or any intentional removal or damage to the top of the fence.

5 However, we have concluded that we do not need to express a view on any basis whatsoever about this conflict in the evidence. We have concluded that, although there is undoubtedly damage to the fence and that it is likely that this has been caused by the tree thus enlivening the Court's jurisdiction, we had no evidence that would indicate there is any likely risk of immediate or foreseeable collapse at any a likely future time that would want the Court intervening. This is consistent with the decision on foreseeability and acceptance of risk discussed by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40.

6 We are satisfied, as a consequence, that, although there is aesthetic damage to the fence when viewed from Ms Zanatta’s side, there is no evidence of structural damage to the fence that would warrant intervention with the tree and the application is therefore refused.

Tim Moore Peter Thyer

Commissioner of the Court Acting Commissioner of the Court