Bailey v Douglass [2018] NSWLEC 1061

Land and Environment Court New South Wales

Medium Neutral Citation: Bailey v Douglass [2018] NSWLEC 1061 Hearing dates: 14 February 2018 Date of orders: 14 February 2018 Decision date: 14 February 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 16. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; fence; risk of injury; debris; orders for pruning and fence repair. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson and Anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Peter Bailey (First Applicant) Jennifer Bailey (Second Applicant) Andrew Douglass (First Respondent) Donna Douglass (Second Respondent) Representation: Peter and Jennifer Bailey, litigants in person (Applicants)

Andrew and Donna Douglass, litigants in person (Respondents) File Number(s): 325577 of 2017

Judgment

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

Background 1. The Douglasses ('the respondents') have a mature Camphor Laurel ('the tree') in the rear garden of their Waratah property. It grows against their steel-panel boundary fence, displacing part of the fence they share with their neighbours, the Baileys ('the applicants'). 2. The Baileys have lived here since 2000. They have noticed this shared fence being displaced by the tree. They say up to six of the roughly 2-metre panels are now out of alignment. They are also concerned about falling limbs, as the tree overhangs their garden by almost 10 metres. They are also concerned about debris in their gutters and the toxic effect this species has on the soil. They say many plants have died as a result and it is difficult to grow things here. 3. The Baileys have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the Douglasses to remove the tree and replace the fence. The Baileys provided quotes for both tree removal and fence replacement. They also provided a report from Vivianne Bleiker, arboricultural consultant, that outlined these issues and recommended removal of the tree. 4. The Douglasses enjoy the benefits of their tree and would like to keep it. They say they offered to prune the tree when they heard the Baileys concerns, but have not carried out any works before finding out what might be ordered. They certainly expressed willingness to prune the tree at the onsite hearing. They provided a quote for removal of the tree and repair of the fence, and alternatively for pruning the tree and adjusting the fence so it is straight and allows for some stem growth. 5. The onsite hearing allowed me to view the situation. I bring my own expertise and experience to this matter.