Clarke v Darcy [2023] NSWLEC 1802

Land and Environment Court New South Wales

Medium Neutral Citation: Clarke v Darcy [2023] NSWLEC 1802 Hearing dates: 10 August 2023 Date of orders: 10 August 2023 Decision date: 10 August 2023 Jurisdiction: Class 1 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 s 12 considerations Legislation Cited: Environmental Planning and Assessment Act 1979 Limitation Act 1969, s 14 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 13 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Bhuta v Cefai [2023] NSWLEC 1330 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 Texts Cited: Australian Standards, AS 4970:2009 Protection of trees on development sites, 2009 Category: Principal judgment Parties: Kristeen Clarke (Self-represented) (Applicant) Christina D'Arcy (Self-represented) (Respondent) File Number(s): 2023/168717 Publication restriction: Nil

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

Background 1. COMMISSIONER: Kristeen Clarke, the applicant, has owned and occupied a dwelling in Camden South since 1988, where she shares a property boundary with the respondent, Christina D'Arcy. The parties have been long term neighbours and the respondent reported a history of conflict between the parties over vegetation on her property. 2. In 2022, Ms Clarke lodged a development application with Camden Council (Council) which proposed demolition of her existing dwelling and construction of a new dwelling. The applicant's existing dwelling was about 5.5 metres (m) from the parties' common boundary, while the planned dwelling extended to about 1 m from this boundary. 3. A mature but relatively compact Jacaranda mimosifolia (the tree), growing about 1230 mm within the respondent's land, is not impacting the applicant's existing dwelling but its canopy is likely to impact the closer proposed dwelling. The respondent claimed that Council offered two solutions: relocation of the dwelling further from the tree or gaining the respondent's consent for heavy canopy pruning. 4. Ms Clarke resisted alteration of the proposed dwelling's footprint and alternatively proposed that Ms D'Arcy remove the tree. The respondent values the tree and opposed either tree removal or pruning. 5. Consequently, Ms Clarke lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), which proposed removal of the tree in order to remedy property damage that the tree has caused, restrain damage the tree is causing, or prevent damage that the tree is likely to cause in the near future.