Redman v McSwiney and Maclure [2018] NSWLEC 1230

Land and Environment Court New South Wales

Medium Neutral Citation: Redman v McSwiney and Maclure [2018] NSWLEC 1230 Hearing dates: 14 May 2018 Date of orders: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Class 1 Before: Galwey AC Decision: See orders at [19] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the tree has caused damage – whether further damage is likely – tree removal would be disproportionate Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Charley Redman (Applicant) Patrick McSwiney (First Respondent) Sharon Maclure (Second Respondent) Representation: C Redman, litigant in person (Applicant) P McSwiney and S Maclure, litigants in person (Respondents) File Number(s): 18/17283 Publication restriction: No

EXTEMPORE Judgment

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

Background 1. A Broad-leaved Paperbark (Melaleuca quinquenervia) ('the tree') grows close to a boundary on Mr McSwiney's and Ms Maclure's ('the respondents') property in South West Rocks. They have owned and lived at the property for approximately two years. During that time Mr Redman ('the applicant') bought the neighbouring property, on which he built a dwelling less than two metres from the tree. 2. At Mr Redman's request, the respondents on two occasions removed branches over his property, significantly reducing the overhanging canopy. Some limbs still extend above his property, as might be expected for a tree this close to the boundary. 3. Mr Redman is now concerned that the tree's roots are damaging the fence and that limbs might fall. He has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the respondents to remove the tree, repair the fence and pay his costs associated with making the application.