20786 of 2007 Terry Dooley and Lynne Shepherd v Jane Nevell
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
2. The application is made by Mr Dooley and Ms Shepherd of 172 Dora Street, Dora Creek, concerning a number of trees located on the adjacent property to the east. Ms Nevell owns this property.
3. The application seeks the removal of six substantial trees, which are located on Ms Nevell property. These comprise four eucalypts, a camphor laurel and a melaleuca.
4. From the southern boundary of Ms Nevell's property along the boundary with the applicants' property, travelling in a northerly direction, as shown on our annotation of a plan provided by the applicants (the tree locations on the applicants' plan are not precisely accurate but are sufficiently so and are adopted for ease of reference), the first of those is a eucalypt which we have marked as T1. It is adjacent to the boundary with the applicants’ property.
5. The second tree, T2, is a camphor laurel a little distance to the north and located some 3 or 4 m in from the boundary.
6. The third tree, T3, is a eucalypt which has had a number of significant branches pruned, in the past, at the time the applicants built their current house – replacing an earlier dwelling that they had occupied on their property.
7. The fourth tree, T4, is a eucalypt some further distance to the north which also has had a major branch removed from it and which has a dead extension to that branch presently contained in its form.
8. The fifth tree, T5,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dooley v Newell [2007] NSWLEC 715
Case
[2007] NSWLEC 715
Decision Date
CaseChat Overview and Summary
The case of Dooley and Shepherd v Nevell before the Land and Environment Court of New South Wales concerned a dispute between neighbours over the presence of trees on the respondent's property that were causing various issues for the applicants. The applicants sought the removal of six trees, consisting of four eucalypts, a camphor laurel, and a melaleuca, on the adjacent property owned by the respondent. The applicants argued that the trees were causing issues such as the deposition of leaves and bark, potential root interference, termite infestation, falling branches, and concerns over tree stability.
The court had to determine several legal issues, including whether the deposition of leaves and bark constituted an unreasonable interference, the likelihood of root interference and termite damage, the risk of falling branches, the impact of water pooling and the water table on tree stability, and the risk of major branch failure. The court considered these issues against the provisions of the Trees (Disputes Between Neighbours) Act 2006.
The court found that while the deposition of leaves and bark was not out of the ordinary and did not warrant a departure from the established principle, the risk of falling branches and the likelihood of major branch failure did enliven the court's jurisdiction. The court ordered the removal of deadwood from certain trees and the pruning of a specific dead trunk element to prevent potential damage to the applicants' property. The court also ruled that the respondent was responsible for the cost of the required work and ordered that such work be conducted by a qualified arborist according to Australian standards. The court did not find any basis for ordering the complete removal of any of the trees.