Davis v Newnan

[2021] NSWLEC 1562

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davis v Newnan [2021] NSWLEC 1562

Hearing dates:

24 June 2021

Date of orders:

24 June 2021

Decision date:

24 June 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See Orders at [29].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury

Legislation Cited:

Trees (Disputes between Neighbours) Act 2006,

ss 7, 9, 10(1)(a), 10(2)(b), 12

Cases Cited:

Dive v Lin & anor [2017] NSWLEC 1348

McPherson v Lake [2017] NSWLEC 1081

Reuben v Lace [2010] NSWLEC 1024

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

Texts Cited:

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, (2016)

Category:

Principal judgment

Parties:

Stephen Davis (Applicant)
Anna Newnan (First Respondent)
Anita Newnan (Second Respondent)

Representation:

Counsel:
A Popovic (Solicitor) (Applicant)
A Newnan (litigant in person) (Respondents)

Solicitors:
Navado Lawyers and Solicitors (Applicant)

File Number(s):

2021/65993

Publication restriction:

No

Judgment

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

1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Mr Stephen Davis, relating to a Eucalyptus nicholii (Narrow Leafed Peppermint) (the tree) located in the adjacent neighbouring property.

Background

2. Mr Davis (the applicant), and Ms Newnan and Ms Newnan (the respondents), share a side boundary between their properties in Thornleigh. The applicant’s property is located on the western side of the respondents’, and both properties face the same street, to the south.

3. Both the applicant and the respondents have lived at their properties for many years. In 2015, the applicant contracted an arborist to prune the tree, so as to remove branches overhanging the common boundary, to minimise the likelihood of damage to the applicant’s property.

The onsite hearing

4. Being open to the street, both properties were accessible for simultaneous inspection, and both parties attended the hearing. Ms Newnan is elderly and had limited mobility. Nonetheless, she participated in the hearing.

5. The tree is mature and long established in the respondents’ front yard. It stands approximately 11 metres tall, with a canopy spread of about 10 metres, and its trunk is leaning towards the respondents’ dwelling. It has sparse foliage, and extensive dead wood. Large, open cracks were clearly apparent from my inspection of the trunk.

6. The tree is located very close to the boundary shared with the applicant, and just a few metres from the front boundary. As the tree base may encroach across the common boundary to a minor degree, I note that for the purposes of the Trees Act, a tree is situated on adjoining land if it is wholly or principally on that land (s 4(3)). The court has previously found, in Dive v Lin & anor [2017] NSWLEC 1348, that to be principally situated on land, more than 50% of the areas of the tree’s stem, where it enters the ground, must be on that…