O’Brien v Butler [2008] NSWLEC 1345

Land and Environment Court of New South Wales

CITATION : O'Brien v Butler [2008] NSWLEC 1345

APPLICANT Paul and Lee O'Brien PARTIES : RESPONDENT Doreen Butler

FILE NUMBER(S) : 20582 of 2008

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Removal of tree, risk of injury to persons, damage to property

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 21/08/2008

EX TEMPORE JUDGMENT DATE : 21 August 2008

APPLICANT Mr and Mrs P. and L. O'Brien, litigants in person LEGAL REPRESENTATIVES:

RESPONDENT Mr N. Butler, agent

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

21 August 2008

20582 of 2008 Paul and Lee O'Brien v Doreen Butler

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: Mr and Mrs O'Brien seek orders for removal of a Cypress tree, to avoid risk of injury to people and to rectify or prevent damage to their property at 21 Bellevue Avenue, Greenwich. The tree is situated in the south-eastern corner of the front yard of the adjoining property to the west, 23 Bellevue Avenue, Greenwich, owned by Mrs Butler. Mrs Butler is an elderly woman residing in a nursing home; she was represented by her son Noel Butler.

2 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 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 ? 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?