Blue v Camilleri (No 2)

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Blue v Camilleri (No 2) [2021] NSWLEC 1476

Hearing dates:

8 March 2021 and 7 July 2021

Date of orders:

20 August 2021

Decision date:

20 August 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The applicant and respondents, or contractors they might engage, may carry out excavation within the root zone (including within 3 metres of the base of the trunk) of the respondents’ Spotted Gum (‘the tree’) where such works do not damage structural roots and do not impact the health or stability of the tree. If at the time of the works the tree has been, or is about to be, removed, impacts to the tree’s roots need not be considered.

(2)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage to a retaining wall – whether damage has been caused by the tree – whether previous orders would prevent investigation of damage – root investigation – whether the respondents should contribute to the cost of repairs – whether tree removal is required – order nullifies the effect of an earlier order preventing excavation

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Blue v Camelleri [2007] NSWLEC 138

Blue v Camilleri [2021] NSWLEC 1303

Nott v Leung; Chu v Leung [2019] NSWLEC 1394

Texts Cited:

Australian Standard AS4970–2009 ‘Protection of trees on development sites’

Parramatta Development Control Plan 2011, Pt 5

Category:

Principal judgment

Parties:

Jeanette Blue (Applicant)
Frank Camilleri (First Respondent)
Rose Camilleri (Second Respondent)

Representation:

M Blue (Agent) (Applicant)
F Camilleri (Litigant in Person) (First Respondent)
R Camilleri (Litigant in Person) (Second Respondent)

File Number(s):

2020/319402

Publication restriction:

No

Judgment

Background to the application

1. In 2007 Jeanette Blue (‘the applicant’) and her husband applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders relating to a neighbouring Spotted Gum (Corymbia maculata) (‘the tree’) belonging to Frank and Rose Camilleri (‘the respondents’). The Court made orders for the Camilleris to obtain an assessment and report on the tree from a qualified arborist. The Court also made an order preventing excavation within 3 metres of the tree without further orders from the Court.

2. In 2020 Mrs Blue applied to the Court, again pursuant to s 7 of the Trees Act, seeking orders for the tree to be removed. Apart from her ongoing concern regarding the risk of branches damaging her dwelling or causing injury, Mrs Blue also alleged that the tree’s roots were now damaging the retaining wall alongside her driveway. Due to the Court’s earlier orders preventing excavation near the tree, she had not engaged anyone to investigate the cause of damage to her retaining wall.

3. I heard the matter following Mrs Blue’s 2020 application onsite, and made orders on 31 May 2021…