McDonnell v Harrison

[2012] NSWLEC 1291

Land and Environment Court

New South Wales

Medium Neutral Citation:

McDonnell v Harrison [2012] NSWLEC 1291

Hearing dates:

21 September 2012

Decision date:

21 September 2012

Jurisdiction:

Class 2

Before:

Moore SC
Fakes C

Decision:

1. The application to remove a Jacaranda, a Lillypilly, and two palms is refused.

2. The respondents are ordered to pay the applicant the sum of $100 within 14 days as reimbursement of the inspection fees for the trees.

Catchwords:

TREES [NEIGHBOURS] Damage to property, injury to persons, compensation

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592
Hinde v Anderson & anor [2009] NSWLEC 1148
Zangari v Miller (No 2) [2010] NSWLEC 1093

Category:

Principal judgment

Parties:

Sandra Loyalty McDonnell (Applicant)

Edward and Sarah Harrison (Respondents)

Representation:

Applicant: Ms S McDonnell (Litigant in person)
Respondents: E & S Harrison (Litigants in person)

File Number(s):

20703 of 2012

EX TEMPORE Judgment

1. The constrained urban settlement pattern of inner Sydney means that there are often tensions between neighbours when substantial trees are grown on a property.

1. In this instance, we have an application concerning a two leader substantially tall, some 10 - 12 m high Jacaranda, located close to the boundary between the applicant's property and the neighbours to the east. We are also dealing with an application concerning a more modestly dimensioned Lillypilly, some 3 m tall and a pair of palms that are about 4.5 or 5 m tall.

1. All of these trees are growing close to the boundary between the two properties.

1. Mrs McDonnell is concerned that the trees have impacted on her property in various fashions and has made an application, pursuant to the Trees (Disputes Between Neighbours Act) 2006 (the Act), seeking both orders for removal of each of the trees and orders for compensation for past damage caused by some of them.

1. The Act requires that we consider for each of the trees whether it has caused, is causing, or is likely in the near future to cause, damage to the McDonnell's property and whether it is a risk of injury to any person.

1. It is convenient for the purposes of this analysis, as we are required to do, to deal with each of the trees in turn.

1. Part of the complaint for three of the trees, that is, one of the palms, the Jacaranda and the Lillypilly, is their deposition of fruit, twigs, leaves and other detritus on the McDonnell's property, making it necessary for maintenance to be undertaken to that property and for shading caused by the Jacaranda, leading to what is described to us as a build-up of mould or moss or some other green growth on the pavers immediately adjacent to the fence.

1. It is convenient to deal first with the question of the deposition of material. In the case of Barker v Kyriakides [2007] NSWLEC 292, the Court published a True Dispute Principle that set out the broad proposition that in…