Murphy v Maggio [2014] NSWLEC 1166

Land and Environment Court New South Wales

Medium Neutral Citation: Murphy v Maggio [2014] NSWLEC 1166 Hearing dates: 12 August 2014 Decision date: 21 August 2014 Jurisdiction: Class 2 Before: Galwey AC Durland AC Decision: The application is upheld. See orders at paragraph (23) Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; application upheld; tree removal ordered Legislation Cited: Trees (Disputes Between neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Category: Principal judgment Parties: P Murphy (Applicant) N Maggio (Respondent) Representation: P Murphy, litigant in person (Applicant) N Maggio, litigant in person (Respondent) File Number(s): 20291 of 2014

Judgment

The Application 1This is a decision of both Acting Commissioners. 2An application has been made by Mr Murphy (the applicant), a property owner and resident in Caringbah, in relation to the mature Eucalyptus racemosa (Scribbly Gum) located near the common side boundary with, and within the front yard of, the adjacent property to his south. The tree is approximately 20 metres in height and has a trunk diameter exceeding one metre. 3Mr Murphy has applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of the tree. 4The owner of the tree, Mr Maggio (the respondent), is now in agreement that the tree should be removed, despite earlier wanting to retain it. 5Mr Murphy wants the tree removed as he states that the tree has a history of limb drop and he is concerned about further damage to his dwelling and possible injury to persons. 6Mr Murphy has provided information to the Court in relation to the past damage he attributes to the tree including damage to the roof and powerlines (1996), damage to the roof and ceiling (1998), fence damage (2001) and a large branch failure that impacted the powerlines (2005). Mr Murphy is not claiming any compensation in this regard. 7In relation to Mr Murphy's concerns about possible injury to persons he pointed out that there is a High School located near the end of the street and that students regularly walk under the canopy of the tree as it overhangs the footpath. Mr Murphy also stated that he was concerned about the safety of the children that reside at the respondent's property. Mr Murphy's concerns in this regard were rekindled as a result of an incident in early 2014 in which several branches fell onto the public footway. 8Mr Maggio stated that he is in agreeance that the tree should now be removed. He pointed to displaced pavers on his property and also stated that he was concerned about future damage to his dwelling and injury to his children.