Clarke v Darcy

[2023] NSWLEC 1802

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clarke v Darcy [2023] NSWLEC 1802

Hearing dates:

10 August 2023

Date of orders:

10 August 2023

Decision date:

10 August 2023

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Court orders:

(1) The Application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage claimed – apprehension of further damage – no damage found – significant s 12 considerations

Legislation Cited:

Environmental Planning and Assessment Act 1979

Limitation Act 1969, s 14

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 13

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Bhuta v Cefai [2023] NSWLEC 1330

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standards, AS 4970:2009 Protection of trees on development sites, 2009

Category:

Principal judgment

Parties:

Kristeen Clarke (Self-represented) (Applicant)
Christina D’Arcy (Self-represented) (Respondent)

File Number(s):

2023/168717

Publication restriction:

Nil

JUDGMENT

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

Background

1. COMMISSIONER: Kristeen Clarke, the applicant, has owned and occupied a dwelling in Camden South since 1988, where she shares a property boundary with the respondent, Christina D’Arcy. The parties have been long term neighbours and the respondent reported a history of conflict between the parties over vegetation on her property.

2. In 2022, Ms Clarke lodged a development application with Camden Council (Council) which proposed demolition of her existing dwelling and construction of a new dwelling. The applicant's existing dwelling was about 5.5 metres (m) from the parties' common boundary, while the planned dwelling extended to about 1 m from this boundary.

3. A mature but relatively compact Jacaranda mimosifolia (the tree), growing about 1230 mm within the respondent's land, is not impacting the applicant's existing dwelling but its canopy is likely to impact the closer proposed dwelling. The respondent claimed that Council offered two solutions: relocation of the dwelling further from the tree or gaining the respondent's consent for heavy canopy pruning.

4. Ms Clarke resisted alteration of the proposed dwelling's footprint and alternatively proposed that Ms D'Arcy remove the tree. The respondent values the tree and opposed either tree removal or pruning.

5. Consequently, Ms Clarke lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), which proposed removal of the tree in order to remedy property damage that the tree has caused, restrain damage the tree is causing, or prevent damage that the tree is likely to cause in the near future.

The on-site hearing

6. The hearing commenced in the respondent's rear yard with both parties in attendance for an inspection of the tree, after which the extent of property damage attributable to the tree was assessed on the applicant's land. The applicant had submitted an Arboricultural Impact Assessment (AIA) (the report) prepared…