Patel v Brannigan [2017] NSWLEC 1739

Land and Environment Court New South Wales

Medium Neutral Citation: Patel v Brannigan [2017] NSWLEC 1739 Hearing dates: 19 December 2017 Date of orders: 19 December 2017 Decision date: 19 December 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; risk of injury; routine maintenance; application is dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Hardik Patel (Applicant) Gail Brannigan (Respondent) Representation: Hardik Patel, Litigant in Person (Applicant) Gail Brannigan, Litigant in Person (Respondent) File Number(s): 293698 of 2017

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. A mature Forest Red Gum (Eucalyptus tereticornis) ('the tree') grows near the rear corner of Ms Brannigan's Baulkham Hills property. The tree was there when she came to the property 22 years ago. It is not so tall, less than 20 metres, and its broad crown spreads over her back garden, a neighbouring garden to her north and Mr Patel's property to the rear of hers. Approximately a third of the crown overhangs Mr Patel's property, although he says at least a half, mostly over his pool, which was there when he came to the property in 2011. 2. Mr Patel ('the applicant') wants the tree removed for the safety of his children and to prevent damage to his property. He replaced his pool cover a few years ago due to damage from branches, and it has holes in it now where dead sticks have fallen from the tree. He is concerned that leaves and debris discolour the water and stain the pool. He says the amount of debris he must deal with from this tree is unreasonable. 3. Ms Brannigan ('the respondent') says that the tree has never been an issue for her. Her children and grandchildren use the area beneath the tree. The tree is attractive, provides shade, is native and attracts birds. She had the tree pruned by an arborist in 2015.