Walker v Kelly [2024] NSWLEC 1136

Land and Environment Court New South Wales

Medium Neutral Citation: Walker v Kelly [2024] NSWLEC 1136 Hearing dates: 13 March 2024 Date of orders: 13 March 2024 Decision date: 13 March 2024 Jurisdiction: Class 1 Before: Galwey AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether tree removal is required Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7, 10, 12 Category: Principal judgment Parties: Alison Walker (Applicant) Amelia Kelly (Respondent) Representation: Counsel: A Walker (Self-represented) (Applicant) A Kelly (Self-represented) (Respondent) File Number(s): 2023/360325 Publication restriction: Nil

Judgment

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

Background 1. COMMISSIONER: Alison Walker (the applicant) parks her car in the driveway of her Mount Colah property. Last August, a palm frond fell from a cocos palm (Syagrus romanzoffiana) on the neighbouring property belonging to Amelia Kelly (the respondent). Ms Walker has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders to prevent further damage, for compensation, and for costs. I note, Commissioners of the court do not have the power to order costs. 2. Ms Kelly and her husband have several palms in their garden. Most are close to their own dwelling, but two cocos palms (the trees) are in their north-eastern corner among a patch of bamboo, close to Ms Walker's garage and bin storage area. Ms Walker parks her car in front of the garage and has done so for the last 12 years. She said that dead palm fronds fall frequently onto her garage roof and some have hit her rubbish bins. She is concerned for her safety when using the rubbish bins. She said a frond once caused minor damage to the front of her car, but in August a falling frond caused more significant damage to the roof of her car. This was repaired for $660. 3. After the frond hit her car, Ms Walker spoke with Ms Kelly. Ms Kelly offered to pay for repairing the damage. Ms Kelly spoke with her husband, Jason Kelly. They thought removing the palms would costs several thousand dollars, which seemed disproportionate and unnecessary considering the damage caused.