Micallef v Diep [2019] NSWLEC 1475

Land and Environment Court New South Wales

Medium Neutral Citation: Micallef v Diep [2019] NSWLEC 1475 Hearing dates: 5 September 2019 Date of orders: 05 September 2019 Decision date: 05 September 2019 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to property, and injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Jeffrey Micallef (First Applicant) Denise Micallef (Second Applicant) Danny Hao Luong Diep (First Respondent) Boi Binh Diep (Second Respondent) Representation: J Micallef, litigant in person (First Applicant) D Micallef, litigant in person (Second Applicant) D Diep, litigant in person (First Respondent) B Diep, litigant in person (Second Respondent) File Number(s): 2019/182293 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr and Mrs Micallef of Carlingford relating to a Cupressus macrocarpa (Cypress) (the tree) located in the rear yard of the adjacent neighbouring property.

Background 1. The western side of Mr and Mrs Micallef's rear yard meets the rear of the respondents' property at the common boundary, and the tree is growing close to the boundary. The applicants reported and provided photographic evidence of one fairly large ascending branch which broke from the tree into their yard around 9 months ago, and noted that other smaller lateral branches had also fallen into their property. 2. Parramatta City Council (Council) supplied the Court with copies of records relating to the tree, in correspondence dated 1 July 2019. These detail Council's prompt response to a request by Mrs Micallef to assess whether the tree was dangerous. The report from the Tree Management Officer (TMO) notes inspection of the tree on 1 May 2019 from the street frontage, that the tree contains a healthy crown, and that it had been extensively pruned in the past. The TMO requested that a letter outlining options for civil dispute resolution be provided to Mrs Micallef, and that the file be subsequently closed.