Duckett v Duffy [2009] NSWLEC 1322

Land and Environment Court of New South Wales

CITATION : Duckett v Duffy [2009] NSWLEC 1322

APPLICANT Kevin Duckett PARTIES : RESPONDENT Sean and Lee Duffy

FILE NUMBER(S) : 20349 of 2009

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- removal of the tree and compensation

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 11 September 2009

EX TEMPORE JUDGMENT DATE : 11 September 2009

APPLICANT Kevin Duckett (litigants in person) LEGAL REPRESENTATIVES:

RESPONDENT Sean and Lee Duffy (litigants in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

11 September 2009

20349 of 2009 Kevin Duckett v Sean and Lee Duffy

JUDGMENT 1 A large, mostly dead Gum Tree stands in the rear yard of 83 Manoa Road, Budgewoi which is owned by Sean & Lee Duffy. The edge of the tree trunk is about one metre from the common boundary with the adjoining property to the east, and some branches overhang that property.

2 Mr Duckett is the owner of 86 Sunrise Avenue, Budgewoi, the adjoining property to the east. He makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) for removal of the tree and compensation of $220 for repair of the swimming pool fence which was damaged by a falling dead branch from the tree. He seeks orders for removal of the tree.

3 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person? 4 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 5 I observed the tree at the hearing and find it to be a Gum tree (Eucalyptus sp) approximately 15 metres tall with crown spread of about 10 metres and a trunk diameter of about 0.5 m. The crown of the tree is about 90% dead with only small sections of live leaf.