Kennedy v Quinn

[2023] NSWLEC 1059

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kennedy v Quinn [2023] NSWLEC 1059

Hearing dates:

06 February 2023

Date of orders:

06 February 2023

Decision date:

06 February 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [20].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – whether the tree is likely to cause injury – who should pay for tree removal – actions of the applicant contributed to the death of the tree

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 4, 7, 10, 12,

Cases Cited:

Freeman v Dillon [2012] NSWLEC 1057

Horn v Latter [2007] NSWLEC 744

Joaquim v Adamson [2009] NSWLEC 1312

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’)

Category:

Principal judgment

Parties:

James Kennedy (Applicant)
Bryan Quinn (First Respondent)
Melissa Quinn (Second Respondent)

Representation:

J Kennedy (Self-represented) (Applicant)
B Quinn (Self-represented) (First Respondent)
M Quinn (Self-represented) (Second Respondent)

File Number(s):

2022/348321

Publication restriction:

No

Judgment

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

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1. COMMISSIONER: Since purchasing their Wahroonga property in early 2022, the Kennedy family has removed some trees and made plans to construct a dwelling. The Kennedys share a common boundary with the Quinns (the Respondents). On the Respondents’ property, which they say is heritage-listed, a building is approximately one metre from the common boundary. Between that building and the boundary stands a dead camphor laurel (Cinnamomum camphora) (the tree), its root buttress extending slightly across the boundary. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), James Kennedy (the Applicant) has applied to the Court seeking orders for the tree to be removed.

The hearing

2. The parties were self-represented. The Court had two reports from arborists: David Gowenlock’s report for the Applicant and Catriona Mackenzie’s report for the Respondents. Neither arborist was required to give evidence at the hearing. The Court inspected the tree and the surrounding environment before hearing submissions onsite.

The tree is on adjoining land

3. Although part of the tree’s root buttress extends across the common boundary, it was apparent from my observations that most of the tree’s stem at ground level is located on the Respondents’ land. The parties agree that this is the case. Therefore, the tree is principally on the Respondents’ land as per s 4(3) of the Trees Act, and consequently, the Applicant has been able to apply for orders pursuant to s 7.

The Applicant made a reasonable effort

4. The Applicant has contacted the Respondents on several occasions. The Respondents expressed an unwillingness to negotiate around issues regarding ‘boundary trees’. There is some friction between the parties. While the nature of their relationship, and circumstances leading to that, might not be relevant to other parts of this decision, I am satisfied that the Applicant reasonably expected that further discussion about the tree was…