Kiefel v Pendergast [2013] NSWLEC 1126

Land and Environment Court New South Wales

Medium Neutral Citation: Kiefel v Pendergast [2013] NSWLEC 1126 Hearing dates: 17 July 2013 Decision date: 17 July 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage; injury; no evidence to support tree removal Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hornsby Shire Council v Malcolm (1986) LGRA 429 P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mrs E Kiefel (Applicant) Mr B Pendergast (Respondent) Representation: Applicant: Mrs E Kiefel (Litigant in person) Respondent: Mrs S Pendergast (Agent) File Number(s): 20260 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant owns a property in Tamworth. She is concerned that a tree growing on a neighbouring property could fall and cause damage to her dwelling or serious injury to anyone in it. 2The applicant has applied to the Court under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders for the removal of the tree at the respondent's expense. 3Material on the Court's file indicates that the application was made with the assistance of the applicant's daughter however, the applicant's daughter did not participate in the proceedings. The respondent's neighbour observed the proceedings. 4The respondent does not wish to remove the tree and has no safety concerns in regards to its location.