O’Mullane v Wehbe [2022] NSWLEC 1604

Land and Environment Court New South Wales

Medium Neutral Citation: O'Mullane v Wehbe [2022] NSWLEC 1604 Hearing dates: 28 July 2022 Date of orders: 02 November 2022 Decision date: 02 November 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage claimed - apprehension of further damage – no damage found - significant s12 considerations Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Gardiner v Bisley [2021] NSWLEC 1176 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mark O'Mullane (Applicant) Kylie Wehbe (Respondent) Representation: M O'Mullane, (Self represented) (Applicant) K Wehbe, (Self represented) (Respondent) File Number(s): 2022/121718 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant, Mr O'Mullane, has occupied his dwelling in Barden Ridge since about 2016, while the respondent, Ms Wehbe, has owned a neighbouring property, which houses an Early Learning Centre, since about 2013. Mr O'Mullane's rear boundary is the northern side boundary of Ms Wehbe's property. 2. A mature Melaleuca linariifolia (Snow in Summer) (the tree), is located in the rear of the respondent's property, close to the boundary adjoining the applicant's land. A Google Earth image (photo) included at question 2 of the Tree Dispute Claim Details shows the applicant's swimming pool located close by across the boundary. Based on this photo, the canopy of the tree does not overhang the pool, but it does overhang the common boundary. 3. Mr O'Mullane says that "the tree for some time has become a nuisance to our property, and particularly our pool", and that "despite a pool cover, it constantly drops seeds, leaves, and also branches into the pool and the backyard". He approached the respondent in early 2022, seeking removal of the tree, but she values various contributions the tree provides, and does not want it removed. 4. As a consequence, Mr O'Mullane lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), in order to remedy damage that the tree has caused, is causing, or is likely to cause in the near future.