English v Southwell
[2018] NSWLEC 1150
•21 March 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: English v Southwell [2018] NSWLEC 1150 Hearing dates: 21 March 2018 Date of orders: 21 March 2018 Decision date: 21 March 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is upheld.
(2) Within 30 days of the date of these orders the respondent is to engage and pay for a suitable qualified and experience arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, including any of its roots along the boundary within 100 mm of ground level.
(3) The respondent is to give the applicant 7 days’ notice of these works.
(4) The applicant is to allow all access required for these works during reasonable hours of the day.
(5) Within 30 days of the date of these orders the applicant is to obtain, and provide to the respondent copies of, three quotes for the replacement of the timber dividing fence of a standard not greater than the standard for a sufficient dividing fence including any works required for the installation of supporting posts. The quotes are to be for the full extent of the fence from the front boundary to the rear boundary of the parties’ properties and are to include removal of the existing fence.
(6) Within 90 days of the date of these orders the applicants are to engage and pay for a contractor to carry out the fence replacement works.
(7) On reasonable notice, the respondent is to allow all access required for these works during reasonable hours of the day.
(8) Within 14 days of receiving a receipted invoice from the applicants for the completed fencing works, the respondent is to pay the applicants 50% of the cheapest quote from order (5).Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); palm; damage to dividing fence; orders for tree removal; orders for fence replacement. Legislation Cited: Dividing Fences Act 1991 No 72 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)Category: Principal judgment Parties: John English (First Applicant)
Cynthia English (Second Applicant)
Margaret Southwell (Respondent)Representation: Counsel:
Solicitors:
Sophie Moloney, solicitor (Applicants)
Margaret Southwell, litigant in person (Respondent)
Walsh and Blair Lawyers (Applicants)
File Number(s): 338935 of 2017 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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In the rear garden of Ms Southwell’s Wagga Wagga property a mature Canary Islands Date Palm (‘the tree’) grows against her side boundary fence. The boundary is shared with her neighbours, the Englishes.
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The Englishes (the applicants) have asked Ms Southwell (the respondent) to remove the tree, primarily due to the displacement it has caused to the timber dividing fence, but have been unable to reach any agreement.
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The Englishes also want to replace the dividing fence along the entire length of the common boundary.
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The Englishes have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of the tree, at Ms Southwell’s expense, and replacement of the boundary fence with the cost of that shared by the parties.
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Ms Southwell enjoys the amenity provided by the tree. She says it is visited by birds. She would prefer to keep the tree. She agrees that the common boundary fence should be replaced.
Onsite hearing
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The hearing took place onsite, allowing observations of the tree and the fence.
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The Canary Islands Date Palm (Phoenix canariensis) appears healthy. Its rootball extends across the common boundary and has displaced the timber paling fence to the extent that this section of the fence requires repair.
The Court may make orders for both the tree and the fence
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The jurisdictional tests within the Trees Act are satisfied: the tree is on land adjoining the applicants’, the applicants have tried to reach agreement with the respondent, and the tree has caused damage to the applicant’s property. It follows that I can make orders for the tree and the section of fence it has damaged, pursuant to s 9 of the Trees Act, as well as for the remainder of the boundary fence, pursuant to s 13A of the Dividing Fences Act 1991 No 72 (NSW).
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Before making orders, I have considered the matters set out at s 12 of the Trees Act, but need mention here only the following. The palm is not without some value and provides amenity to not only the respondent’s property, but to the broader landscape. It would not require any permit for removal; it is on Wagga Wagga Council’s list of undesirable species.
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I have considered solutions that would allow the tree to remain, including those suggested by Ms Southwell regarding alternative fencing designs. However, I accept the Englishes’ contention that a new fence would be damaged by further root growth if constructed to the edge of the rootball, or would not contain domestic animals if a gap was left to allow for such root growth. For this reason I see no alternative to ordering the tree’s removal.
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Because Ms Southwell agrees that the entire fence should be replaced, I will order this rather than just replacement of the damaged section. Ms Southwell will only be required to contribute half of the cost of a fence using similar materials to the existing fence. As discussed between the parties at the hearing, the Englishes may construct a more expensive fence, with Ms Southwell’s approval, but would bear any additional costs themselves.
Orders
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As a result of the foregoing the orders of the court are:
The application is upheld.
Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, including any of its roots along the boundary within 100 mm of ground level.
The respondent is to give the applicant 7 days’ notice of these works.
The applicant is to allow all access required for these works during reasonable hours of the day.
Within 30 days of the date of these orders the applicant is to obtain, and provide to the respondent copies of, three quotes for the replacement of the timber dividing fence of a standard not greater than the standard for a sufficient dividing fence including any works required for the installation of supporting posts. The quotes are to be for the full extent of the fence from the front boundary to the rear boundary of the parties’ properties and are to include removal of the existing fence.
Within 90 days of the date of these orders the applicants are to engage and pay for a contractor to carry out fence replacement works along the common boundary.
On reasonable notice, the respondent is to allow all access required for these works during reasonable hours of the day.
Within 14 days of receiving from the applicants a receipted invoice for the completed fencing works, the respondent is to pay the applicants 50% of the cheapest quote from order (5).
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 23 March 2018
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