Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006

Land and Environment Court New South Wales

Medium Neutral Citation: Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006 Hearing dates: 9 January 2013 Decision date: 09 January 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed in 20837 of 2012 Application upheld in 21075 of 2012; tree removal ordered Catchwords: TREES [NEIGHBOURS] Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr T Kellock (Applicant: 12/20837) Ms F Le Poidevin (Applicant: 12/21075) Ms T Callinan (Respondent both matters) Representation: Applicant: Mr T Kellock (Litigant in person) Applicant: Ms F Le Poidevin (Litigant in person) Respondent: Ms T Callinan (Litigant in person) File Number(s): 20837 of 2012; 21075 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: These are two applications made under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by owners of two adjoining units (units 4 and 5) in Bathurst. 2Both applicants are concerned about a Golden Elm tree growing at the rear of the respondent's property. The owner of unit 4, Mr Kellock, has also nominated a Claret Ash as being of concern. The applicants are seeking the removal of the Golden Elm on the basis of it causing actual or future damage to their properties or potentially causing injury. Mr Kellock also seeks the pruning of the Claret Ash as a precaution against future damage. Ms Le Poidevin, the owner of unit 5 is seeking orders for the rectification of displaced paving in her rear courtyard. 3The respondent does not wish to remove the Golden Elm as she values it for the amenity it provides. 4The Golden Elm is a healthy, early mature specimen growing at the rear of the respondent's property about 300mm from the metal fence that separates the respondent's property from unit 5. It has codominant stems with included bark. 5The Claret Ash is a healthy semi-mature specimen approximately 3 m from the boundary fence between the respondent's and Mr Kellock's property. 6In applications made under Part 2, the key jurisdictional test is found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that any of the trees concerned 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 any person. 7If any part of this section is met, the Court's jurisdiction to make orders under s 9 is engaged and the Court can make any orders it thinks fit to remedy, rectify or prevent damage to property or injury to any person.