Fitzgerald v Attard [2012] NSWLEC 1233

Land and Environment Court New South Wales

Medium Neutral Citation: Fitzgerald v Attard [2012] NSWLEC 1233 Hearing dates: 21 August 2012 Decision date: 21 August 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application to removed trees dismissed; pruning ordered Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; electrical services; declining tree Legislation Cited: Trees (Disputes between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Ghazal v Vella (No. 2) NSWLEC 1340 Category: Principal judgment Parties: Ms Terri-Mae Fitzgerald (Applicant) Mr Andrew Attard (Respondent) Representation: Applicant: Ms Terri-Mae Fitzgerald (litigant in person) Respondent: Mr Andrew Attard (litigant in person) File Number(s): 20555 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Woy Woy against the owner of two trees growing on an adjoining property. 2The applicant seeks orders for the removal of the two trees on the basis that branches from the trees may fall onto power lines near her property or onto her property. In the event of the powerlines coming down this may electrify a metal fence or her pool thus potentially causing injury to anyone who may be in contact with those things. The applicant also contends that branches from the paperbark tree have fallen onto her pool cover and have damaged the cover and the clips that support it. She is concerned that branches will continue to fall, particularly in windy conditions, and cause damage or injury. The applicant is concerned that wet soil conditions near the trees may predispose them to complete failure, potentially bringing down powerlines and causing damage or injury. 3The respondent has owned his property since December 2011. The application to the Court was made in June 2012.