Willis v Johnson

[2021] NSWLEC 1513

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Willis v Johnson [2021] NSWLEC 1513

Hearing dates:

30 August 2021

Date of orders:

30 August 2021

Decision date:

30 August 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – overhanging tree – damage to property – risk of injury – brush turkeys – brush turkey faeces – fire – debris – mould – remedy or prevention is not available under the Trees Act

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Lyons v Maybaum [2014] NSWLEC 1055

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Blue Mountains Development Control Plan 2015, Part C

Category:

Principal judgment

Parties:

Matthew Willis (Applicant)
Leigh Johnson (Respondent)

Representation:

M Willis (Litigant in Person) (Applicant)
L Johnson (Litigant in Person) (Respondent)

File Number(s):

2021/207881

Publication restriction:

No

Judgment

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

Background to the application

1. Matthew Willis (‘the applicant’) has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the removal of a neighbouring tree and for compensation for property damage. The tree is on adjoining land belonging to Leigh Johnson (‘the respondent’).

The hearing

2. The hearing took place online via audio-visual means. Parties were self-represented. I informed the parties that I would arrange a later onsite inspection if, at the end of today’s hearing, I determined it would be required for this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that such an inspection would not be required. I bring my own arboricultural expertise and experience to making this decision.

3. Due to potential health concerns, timeframes in these proceedings had been shortened to allow for an earlier hearing than would otherwise occur. This decision is being given immediately after the hearing so the parties know the outcome and can begin further steps should they wish.

Framework for this decision

4. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the tree’s owner (s 10(1)(a) of the Trees Act).

5. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person. The tree must be situated on land adjoining the applicant’s land (s 7).…