Wheeler v McDonald [2007] NSWLEC 383

Land and Environment Court of New South Wales

CITATION : Wheeler v McDonald [2007] NSWLEC 383

APPLICANT Shaun Wheeler PARTIES : RESPONDENT Geoff McDonald

FILE NUMBER(S) : 20181 of 2007

CORAM: Hussey C - Thyer AC

KEY ISSUES: Trees (Neighbours) :- Potential damage to property, injury to persons and overhanging branches.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 18/06/2007

EX TEMPORE JUDGMENT DATE : 18 June 2007

APPLICANT Mr S. Wheeler, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT Mr G. McDonald, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C Thyer AC

18 June 2007

20181 of 2007 Shaun Wheeler v Geoff McDonald This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 This is an application pursuant to s 7 of the Trees (Dispute Between Neighbours) Act 2006 concerning a tree located on a property at 28 First Avenue, Erowal Bay. The property is owned by Mr McDonald and the tree is a mature Spotted Gum.

2 The application has been made by Mr S. Wheeler from No. 30 First Avenue, who seeks orders from the Court firstly; that the branches that are overhanging the common boundary of the shed be pruned to stop dropping branch damage to the shed and possible injury to persons. Secondly, rectification be undertaken to the fence alignment occasioned by tree movement. Tree Disputes Between Neighbours Act 2006. (Act) 3 The relevant provisions of s 10(2)(a) of the Act require the Court to be satisfied that one or more of the following four conditions are met with respect to any trees subject to the application, before the Court has jurisdiction to consider the application concerning the tree. The tests are: 1. Has the tree caused damage to the applicant's property?