Keir v Olson & ors [2014] NSWLEC 1245

Land and Environment Court New South Wales

Medium Neutral Citation: Keir v Olson & ors [2014] NSWLEC 1245 Hearing dates: 28 August 2014 23 October 2014 Decision date: 02 December 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 25. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for tree removal, fence replacement and planting a replacement tree. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Julie Keir (Applicant) Erin Olson (First Respondent) Samantha Olson (Second Respondent) Phillipa Howse (Third Respondent) Representation: Julie Keir, litigant in person (Applicant) Samantha Olson, litigant in person (First and Second Respondents) Phillipa Howse, litigant in person (Third Respondent) File Number(s): 20329 of 2014

Judgment

The application 1A large Eucalypt grows in the small rear garden of a Rozelle property, close to the rear northern boundary. The tree's broad crown overhangs several adjoining properties. 2Ms Keir ("the applicant") owns the property to the north of the tree, sharing the common boundary next to which the tree grows. At its base the stem of the tree is only a metre or so from the wall of Ms Keir's dwelling. Limbs are close to parts of her roof, but of even greater concern to Ms Keir is the tree's history of dropping limbs. She says these are likely to cause damage to her dwelling, or injury to herself or anyone beneath the tree's crown. The tree's stem pushes against the boundary fence. Ms Keir alleges the tree's stem has damaged the fence and that roots are damaging her property. Ms Keir has applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for the tree to be removed and for the fence to be repaired. 3When the application was filed with the Court, the property on which the tree grows was owned by Mr and Ms Olson (the first and second respondents). By the time of the hearing, Ms Howse (the third respondent, but for simplicity within this judgment referred to as "the respondent") had purchased the property and had been joined as a party to the proceedings. 4Ms Howse also has concerns regarding the tree. At the time of the onsite hearing she had lodged an application for tree removal with Leichhardt Council under Council's Tree Preservation Order. In order to avoid interfering with that process, the matter was heard onsite and then stood over until a later date to allow Council's assessment to be completed. The matter was then finalised by telephone mention on 23 October.