Bailey v Gould

[2011] NSWLEC 1062

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bailey v Gould [2011] NSWLEC 1062
Hearing dates:	15 March 2011
Decision date:	15 March 2011
Jurisdiction:	Class 2
Before:	Moore SC, Hewett AC
Decision:	Application dismissed.
Catchwords:	TREES (NEIGHBOURS); Jacaranda trees; unusual "borer" hole; inexplicable staining consistent with folding of linen and crushing of flower; ordinary maintenance obligations in urban areas
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Dooley & anor v Nevell [2007] NSWLEC 715 Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Barker v Kyriakides [2007] NSWLEC 292
Category:	Principal judgment
Parties:	M Bailey (Applicant) S Gould (Respondent)
Representation:	M Bailey (Applicant in person) S Gould (Respondent in person)
File Number(s):	20977 of 2010

Judgment

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

1. Two Jacaranda trees ( Jacaranda mimosifolia ) grow in the rear of a property at Newtown. One of them is some 3 m or so tall and the other is some 10 or 11 m tall. The younger of the trees is clearly a self-sown offspring of the larger and the larger tree is, on the evidence from the tree owner, at least 25 years old.

1. There are a number of matters that we need to deal with in these proceedings. At the outset we observed one curious matter about the larger of the two trees. At approximately fence height, on the far side of the tree away from the applicant's side of the fence, is a perfectly round hole some 4 cm or so deep and ~ 1 cm in diameter. This hole is similar to other perfectly round holes that have been drawn to our attention in a number of other cases in the past - they are inconsistent with any known form of borer that might inhabit this tree and entirely inconsistent with any other minor borer activity that it might have taken place in the past in the tree. We, however, draw no conclusions concerning the causation of that hole.

1. We also observe that there are concerns expressed by the applicant concerning termites that might have inhabited the tree and birds that might, in her submission, have fed on the fruits of the tree and defecated on her property. We observe, consistent with the decision of the Court in Dooley & anor v Nevell [2007] NSWLEC 715, that these are not matters caused by the tree and are therefore entirely outside the jurisdiction of the Court under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

1. We now turn to deal with matters that are relevant to our consideration of the tests under s 10(2) of the Trees Act. These are the questions of whether the tree or trees have caused; are causing; or are likely in the new future to cause damage to the applicant's property; or whether they are a…