Land and Environment Court New South Wales

• Medium Neutral Citation: Martens v Lazar [2011] NSWLEC 1219
• Hearing dates: 25 July 2011
• Decision date: 25 July 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

The application is dismissed

• Catchwords: DAMAGE TO PROPERTY - injury to persons; Damage occasioned to property during the felling of a tree is not damage caused by a tree
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr Robert William Martens and Mrs Lene Martens (Applicants); Mr Imre Lazar (Snr), Mrs Lydia Lazar and Mr Imre Lazar (Jnr) (Respondents)
• Representation: Mr R W Martens and Mrs L Martens (Applicants in person); Mrs L Lazar (Respondent in person)
• File Number(s): 20472 of 2011

Judgment

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

1. This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Glenning Road, Glenning Valley, against the owners of tree on an adjoining property.

2. The applicants are seeking orders for the removal of a dead pine tree that overhangs their property from the respondent's land.

3. The applicants also seek orders for the payment of Court filing costs and costs that they incurred when hiring machinery to prune some of the overhanging branches.

4. I informed the parties that Commissioners are not authorised to determine costs and therefore I would not be considering that element of the application.

The site hearing

5. Mrs L Lazar was the only respondent who attended the onsite hearing.

6. At the time of submitting their application, the applicants say the tree was a substantial but dead pine tree situated on the respondents land and close to their northern boundary. They say that many large dead branches overhung the boundary and also overhung a water tank on their land.

7. Although the applicants contend that the tree has in the past shed dead branches and damaged property on their land, they were not pressing any claim for compensation arising from that alleged damage.

8. In uncontradicted evidence given at the hearing the applicants say that on 4 July 2011 that Mr Lazar (Snr) himself cut the tree down and in the course of doing so he dropped branches that occasioned minor damage to their fence and broke a large terracotta pot in their rear garden.

9. As a result of these damages the applicants now seek leave to apply for compensation.

10. Under s 10(2)(a) of Act, the Court must not make an order unless it is satisfied that the tree concerned, has caused, is causing, or is likely in the near future, to cause damage to the applicants property.

11. I am satisfied on the evidence that Mr Lazar (Snr) damaged the applicants' fence and broke their terracotta pot in the process of cutting down his tree. That damage was caused by his actions and was not as a consequence of the tree.

12. Therefore, as none of the tests in s 10(2) of the Act are met, the Court does not have jurisdiction and the application is dismissed.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 02 August 2011