Wong v Bailey [2012] NSWLEC 1232

Land and Environment Court New South Wales

Medium Neutral Citation: Wong v Bailey [2012] NSWLEC 1232 Hearing dates: 16 August 2012 Decision date: 16 August 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): risk of damage; risk of injury; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr Ivan Wong (Applicant)

Mr Stan Bailey (Respondent) Representation: Mr Ivan Wong (Litigant in person) (Applicant) Mr Stan Bailey (Litigant in person) (Respondent) File Number(s): 20444 of 2012

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

1ACTING COMMISSIONER: A mature Narrow-leaved Black Peppermint ("the tree") grows on Mr Bailey's Burwood property, where he resides. The tree is adjacent to his side boundary, part of which is the rear boundary of his neighbour Mr Wong's property. Mr Wong is concerned that the tree may entirely fall onto his property, and that limbs may fall into his property, causing damage or injury. He has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of the tree. Mr Bailey, the respondent, disputes that the tree is likely to cause damage or injury and says that the tree provides benefits. He wants to retain the tree.

Framework to be considered 2Firstly, according to s 10(2) of the Act, the Court must be satisfied that the tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property, or is likely to cause injury to a person. If one of these tests is met the Court's jurisdiction is engaged. Secondly, under s 12 of the Act there is a range of matters that must be considered. Finally, the Court can make orders as it sees fit, according to s 9 of the Act, to remedy, restrain or prevent damage to the applicant's property, or to prevent injury to a person.