Blue v Camelleri

Land and Environment Court

of New South Wales

CITATION:	Blue v Camelleri [2007] NSWLEC 138
PARTIES:	APPLICANTS N & J Blue RESPONDENTS F & R Camelleri
FILE NUMBER(S):	20086 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :- Application for removal Orders to protect against excavation Precautionary approach
DATES OF HEARING:	16 March 2007
EX TEMPORE JUDGMENT DATE:	16 March 2007
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS Mr J MacLennan, solicitor TressCox Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

16 March 2007

07/20086 N & J Blue v F & R Camelleri

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site at

1 THE COMMISSIONERS: This decision concerns an application by Mr and Mrs Blue, who are the proprietors of 46A Rock Farm Avenue, Dundas. They are seeking an order pursuant to s 9 of the Trees (Dispute Between Neighbours) Act 2006 (the Act) for the removal of a mature eucalypt which is located in the front setback of 44 Rock Farm Avenue, the adjacent property to the west.

2 We have had the opportunity of inspecting the tree from the two properties and of hearing informal evidence from the present owners of both 46A and 44 Rock Farm Avenue. We also inspected the interior and front balcony of the residence at 46A Rock Farm Avenue.

3 We have reached a number of conclusions with respect to the state of the tree and the risk which it is said by the residents of 46A Rock Farm Avenue that the tree poses to them and their property.

4 At the outset of this consideration, we note that, for the Court to act with respect to a risk apprehended or a fear held by a person making an application to the Court (whether under this legislation or generally in the Court in Classes 1 and 2 of its jurisdiction), there must be a number of tests satisfied.

5 The first test is that the risk is a risk or fear is one which is reasonably likely to be realised.

6 The second is that the consequences of the realisation of that risk or fear will give rise to consequences to a sufficiently serious extent to require the intervention of the Court.

7 Under the Act, the consequences to be prevented are damage to property or injury to persons. We are satisfied that, for damage to property, the possible consequence must be damage of more…