Bowler v Mackney [2022] NSWLEC 1250

Land and Environment Court New South Wales

Medium Neutral Citation: Bowler v Mackney [2022] NSWLEC 1250 Hearing dates: 30 November 2021 Date of orders: 13 May 2022 Decision date: 13 May 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [31] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – whether neighbouring trees have damaged the applicant's property – whether trees are likely to cause damage or injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Texts Cited: Australian Standard 4373:2007 'Pruning of amenity trees' Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Kenneth Frederick Bowler (Applicant) Lorraine Beryl Mackney (Respondent) Representation: K Bowler (Self-represented) (Applicant) L Mackney (Self-represented) (Respondent) File Number(s): 2021/263520 Publication restriction: No

Judgment

Background to the application 1. ACTING COMMISSIONER: Neighbours Kenneth Bowler (the Applicant) and Lorraine Mackney (the Respondent) live in Corlette, in the Port Stephens region. Several trees on Ms Mackney's property are close to their common boundary. Mr Bowler says the trees have damaged his property and threaten further damage or injury. He 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 Ms Mackney to remove the trees. He also seeks orders for Ms Mackney to pay compensation for damage and for the costs of his application to the Court. 2. The orders that Mr Bowler seeks are orders the Court can make at s 9 of the Trees Act. However, Commissioners of the Court do not have the power to order costs, so if Mr Bowler wishes to pursue that order, he would need to file a Notice of Motion to be heard by the Registrar or a Judge of this Court. 3. The hearing took place via MS Teams on 30 November 2021, with both parties self-represented. With the information before me, I have been able to make this decision without the need for a site view.