Horn & anor v Latter - [2007] NSWLEC 744

Land and Environment Court

of New South Wales

CITATION: Horn & anor v Latter [2007] NSWLEC 744

PARTIES:
APPLICANTS
Colin & Judith Horn
RESPONDENT
Lesha Latter

FILE NUMBER(S): 20723 of 2007

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Poisoning of tree by applicants
Who should meet cost of removal

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 23 October 2007

EX TEMPORE JUDGMENT DATE: 23 October 2007

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

23 October 2007

07/20723 Colin & Judith Horn v Lesha Latter

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. Mr and Mrs Horn make the application concerning two trees located on their neighbouring property to the west, 47 Morpeth Road, East Maitland. Ms Latter owns this property.

3. We have had, in the evidence, as part of the application, a report on the trees by Ms Karen Barrett, an AQF level 5 arborist. Her report is generally consistent with our conclusions about the two trees. The two trees which are involved are a Willow Leafed Peppermint (Eucalyptus nicholii) (the Peppermint) and a Peppercorn (Schinus areira) (the Peppercorn).

4. The Peppermint is located at approximately the mid-point of the Horns’ boundary with Ms Latter’s property and the Peppercorn is located at about three quarters of the length of their shared boundary.

5. We have considered each of these trees in the context of their setting and in light of the report by Ms Barrett.

6. We turn first to the Peppermint. It is only in fair condition with at least one mistletoe evident in the canopy – indicating a degree of stress in the tree. There is a large branch with significant weight which overhangs the Horns’ house and particularly overhangs their bedroom. The main trunk of this tree also leans at about twenty degrees from the vertical in the direction of the Horns’ property.

7. Eucalyptus nicholii, as a species, are prone to root crown failure and, in addition, we have observed a number of the damaged bark areas to the tree, where there is no obvious cause for that damage.

8. We have assessed this tree against the tests we are obliged to consider…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Horn & anor v Latter

Details

AGLC: Horn & anor v Latter [2007] NSWLEC 744
Case: [2007] NSWLEC 744
Decision Date: 23 October 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Horn & anor v Latter involved an application by Colin and Judith Horn concerning two trees located on their neighbouring property. The respondents, Lesha Latter, owned the property where the trees were situated. The applicants sought orders regarding the removal of the trees due to concerns about their condition and the potential risk they posed. The legal issues centered on determining who should bear the cost of tree removal under the Trees (Disputes Between Neighbours) Act 2006. The court had to assess the condition of the trees, the risks they posed, and whether the applicants' actions contributed to the trees' decline.

The court evaluated the condition of the two trees in question, a Willow Leafed Peppermint and a Peppercorn, considering expert reports and evidence presented. For the Willow Leafed Peppermint, the court found it to be in a fair condition with significant overhang and structural weaknesses, posing a risk of injury. The court concluded that the tree should be removed and ordered that Lesha Latter should bear the cost of removal. However, given Latter's financial constraints, the court provided an alternative for the applicants to remove the tree at their expense if they chose to do so. The Peppercorn was found to have significant structural issues, partly caused by the applicants' poisoning of a root. The court determined that the applicants should bear the cost of removing the Peppercorn, as their actions contributed to its decline.

In summary, the court ordered that the Willow Leafed Peppermint be removed by Lesha Latter, with an alternative for the applicants to remove it at their expense if Latter failed to comply. For the Peppercorn, the court ordered its removal by Colin and Judith Horn, as their actions had contributed to its decline. The court's orders specified the qualifications of the arborists and the standards for tree removal, ensuring the safety and integrity of both properties.

Orders