NSW Caselaw
Land and Environment Court New South Wales
Medium Neutral Citation: Knight v McSweeney [2013] NSWLEC 1035 Hearing dates: 13 February 2013 Decision date: 13 February 2013 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Dooley & anor v Nevell [2007] NSWLEC 715 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Category: Principal judgment Parties: Mark Knight (Applicant)
Paula McSweeney (First respondent) David McSweeney (Second respondent) Representation: Mark Knight (Applicant) (Litigant in person) Brian Phillips MCW Lawyers (Respondent) File Number(s): 21090 of 2012
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Introduction 1Mr Knight has been the owner of a Darlinghurst property for about 13 years. The Knights renovated their terrace house approximately 11 years ago adding a two-level addition at the rear of the dwelling and landscaping their courtyard. At that time a large tree already stood on the neighbouring property to their south-west. That property, owned by the McSweeneys since 1985, was rented out until recently. 2Mr Knight is concerned that the tree has damaged his property and may cause injury. Under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") he has applied to the Land and Environment Court for the removal of the tree, compensation of $43,000 for damage to his property and costs of $770 for an arborist report. Commissioners don't have the power to award costs so the application regarding the final order sought would require a Notice of Motion to be heard by a Judge, should Mr Knight wish to pursue this. 3The McSweeneys value their tree and wish to retain it. They say there is no evidence that their tree has caused damage to the Knight's property.
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