Beacher v Arkless

Land and Environment Court

New South Wales

Medium Neutral Citation:	Beacher v Arkless [2011] NSWLEC 1320
Hearing dates:	8 November 2011
Decision date:	08 November 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove tree dismissed; orders for rectification of fence
Catchwords:	TREES [NEIGHBOURS] damage to property, injury to persons
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	McLaren v Lewis (No 2) [2011] NSWLEC 176 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Ms L Beacher (Applicant) Mr J and Mrs Y Arkless (Respondents)
Representation:	Applicant: Ms L Beacher (Litigant in person) Respondents: Mr J Arkless (Litigant in person)
File Number(s):	20674 of 2011

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 s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Merewether against the owners of a tree growing on an adjoining property.

1. The applicant is seeking the removal of the tree on the basis that is has caused damage to the metal dividing fence between the parties' properties and will continue to do so. The applicant is seeking orders for the rectification of the fence to be undertaken by the respondents at their expense with the works to be carried out without any access to the applicant's property. In addition, the applicant is concerned about future damage the roots of the tree may cause to the footings of her house and to nearby water pipes. Other concerns go to the risk of injury posed by the failure of the whole tree or the loss of branches from it.

1. In response to the Court's directions enabling the filing of additional material by either party, the applicant filed a claim for costs. The costs are for phone calls for the direction's hearing, loss of income during the on-site hearing, and the filing fees. In this regard, Commissioners do not have the jurisdiction to award such costs and a separate application must be made. It may be of interest for the applicant to note the finding of Preston CJ in McLaren v Lewis (No 2) [2011] NSWLEC 176.

1. The tree is a mature Lillypilly growing in a narrow garden bed between the respondents' driveway and the side boundary fence. The respondents have lived on their property since 1989 and the tree was established when they purchased it. The parties installed the metal fence about 10 years ago.

1. The applicant has owned her property for about 20 years but has not always resided there. A new house was completed in April this year and the applicant has lived in it for the last 6 months.

1. About 12 months ago, during the construction of the applicant's new house, the respondents reduced the height of the tree by about half. At the time of the hearing there were no branches of any significant size touching the fence.

1. The…