Ewen v Whan

Land and Environment Court New South Wales Medium Neutral Citation: Ewen & anor v Whan & anor [2016] NSWLEC 1501 Hearing dates:27 October 2016Date of orders: 27 October 2016 Decision date: 27 October 2016 Jurisdiction:Class 2Before: Galwey AC Decision: The application is upheld. See orders at (19). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); Council tree protection; Court’s role under the Trees Act is distinct from Council’s role; risk of damage or injury; orders for pruning one tree. Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Category:Principal judgmentParties: Helen Ewen (First Applicant) Paul Dusan (Second Applicant) Renee Whan (First Respondent) Greg Fountain (Second Respondent) Representation: Helen Ewen and Paul Dusan, litigants in person (Applicants) Renee Whan and Greg Fountain, litigants in person (Respondents) File Number(s):195854 of 2016JudgmentBackground Amongst the dense dwellings of Annandale a mature Sydney Blue Gum (Eucalyptus saligna) (‘the Tree’) stands in a small courtyard at the rear of a dwelling, its crown visible for some distance in the surrounding neighbourhood. In 2010 Dr Whan and Mr Fountain (‘the respondents’) purchased the property on which the tree stands, and have lived there since. The previous owners of their property had applied to Leichhardt Council in 2005 to remove the tree. Council refused the application, noting the tree was in “excellent condition”. An arboricultural report obtained by the owners at the time recorded...