Dooley & anor v Berryman & anor [2016] NSWLEC 1500

Land and Environment Court New South Wales

Medium Neutral Citation: Dooley & anor v Berryman & anor [2016] NSWLEC 1500 Hearing dates: 25 October 2016 Date of orders: 25 October 2016 Decision date: 25 October 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); debris; there must be more than a theoretical possibility that damage will occur; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: May Dooley (First Applicant) Gerald Dooley (Second Applicant) Tim Berryman (First Respondent) Anna Berryman (Second Respondent) Representation: Geraldine Cohen, agent (Applicants) Anna Berryman, litigant in person (Respondents) File Number(s): 207405 of 2016

Judgment

Background 1. Mr and Mrs Dooley ('the applicants') have applied to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for removal of a neighbouring Norfolk Island Pine ('the tree'). They have lived at their property for four years. Their dwelling is approximately 17 years old. 2. Mr and Mrs Berryman ('the respondents') have owned and lived at the neighbouring property for approximately 16 years. The tree was there when they purchased the property. They do not wish to remove it. 3. Mr and Mrs Dooley say the tree needs to be removed because: * Lots of debris falls from the tree * Leaves and small branches falling from the tree have broken roof tiles – tiles which are now unavailable to replace * Leaves and debris from the tree block their gutters and downpipes * Debris covers the ground in their property, especially after storms * Leaves lying on the ground are slippery and hazardous * Cleaning up this amount of debris is onerous * The tree is tall, its branches overhang their dwelling, and if it falls it will cause damage or injury * The tree is less than 4 metres from their dwelling and they are worried its roots will damage their dwelling * Sewer and stormwater pipes are near the tree and they are worried that roots will invade the pipes. 1. Mr Robert Church, a retired engineer, gave supporting evidence for the applicants. Mr Russell Kingdom, arborist, gave evidence for the respondents. 2. The tree is healthy, has no major structural defects that can be seen from the ground, and has typical form for this species.