McDonald v Limon [2008] NSWLEC 1100

Land and Environment Court of New South Wales

CITATION : McDonald v Limon [2008] NSWLEC 1100

APPLICANT J McDonald PARTIES : RESPONDENT P & J Limon

FILE NUMBER(S) : 21128 of 2007

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Removal of trees

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 18/02/2008

EX TEMPORE JUDGMENT DATE : 18 February 2008

APPLICANT J McDonald LEGAL REPRESENTATIVES: RESPONDENT P & J Limon

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

18 February 2008

21128 of 2007 J McDonald v P & J Limon

JUDGMENT The decision was given during the hearing on 18 February 2008. This written judgment reflects the findings and the background documentation provided as part of the proceedings. 1 ACTING COMMISSIONER: Part of the driveway to Mr McDonald's home in the southern highlands of NSW appears to have subsided about 0.2 m. The subsidence of one side of the driveway and its concrete edging is beside a row of radiata pine trees growing on his neighbour's property. Mr McDonald says the radiata pine trees have caused the subsidence.

2 Mr McDonald wants the trees removed. He is not seeking compensation.

3 An application to the Court under the Trees (Disputes Between Neighbours) Act 2006 is only valid for a tree to which the Act applies that is situated on adjoining land.

4 The Court must also be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met before making an order regarding the tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?