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 under s 10(2) of the Act. We are satisfied that the test in s 10(2)(b) of the Act is met – in that there is a likely risk of injury to a person if the overhanging branch were to fail. We are satisfied that this risk cannot be ignored given the general state of the tree.

9. We have considered whether it would be prudent, under the circumstances, merely to order the removal of the significant lateral branch which is over the bedroom of the Horns’ property. We have concluded that it would not be prudent to confine our orders in that regard as there would still be a significant likelihood of whole tree failure - given the general state of the tree. There would thus remain a real risk of injury because of the lean of the tree as well as the other factors to which we have referred. Therefore, we have concluded we should order the removal of this tree.

10. We are satisfied that there is no causal link between the present state of this tree and anything which might have been undertaken by the applicants in the past. Therefore, there is no reason why we should depart from the conventional practice, in such applications, of ordering that the removal be undertaken and paid for by Ms Latter.

11. We have concluded that we should allow her three months from the date of the Court’s orders for this to occur. However, we have also had our attention drawn to the fact that Ms Latter is in constrained financial circumstances. We therefore consider it prudent, under the circumstances, to provide an alternative, at the election of the applicants if they wished to do so, to enable the tree to be removed at their expense if, for some reason, Ms Latter failed to comply with the orders of the Court within a timeframe acceptable the applicants or at all. As a consequence, we also propose to order that, if, at any time the applicants give notice in writing to the respondent that they wished to remove the Peppermint at their own cost, they are permitted to do so. Any contractor engaged by them for that purpose is permitted access (on reasonable notice and at a reasonable time of day) to the respondent’s property to do this. If this occurs, Ms Latter is entitled to supervise such access. Any removal of the Peppermint by either party is to be undertaken by an at least AQF level 3 arborist with appropriate insurances. Removal of the Peppermint is to be to a stump height not greater than 300 mm above the existing ground level.

12. We now turn to the Peppercorn. We are satisfied that it has significant structural weaknesses at the eastern centre of its branch structure, some 2 m or so above the ground (where there has been a significant branch death which has impacted on the remaining structural integrity of the tree). There is also some decay on the eastern side of the trunk at ground level and there is significant actual and incipient vine strangulation of the tree by wisteria, jasmine and a range of other vines listed by Ms Barrett in her report.

13. However, in the supplementary material concerning compensation, filed by the applicants, appears the following:

Some 7 years ago we experienced uplifted paving within our rear pergola at the house rear entrance. Excavation revealed a large root of approximately 75 mm in diameter.

14. As a consequence of finding that root, the applicants stated, in the material, that they “drilled and poisoned the root and subsequently a section of peppercorn overhanging our fence died”. The section of the Peppercorn which died has been identified to us by Mr Horn as the area of significant structural weakness on the eastern centre side on the tree.

15. We are satisfied that the root poisoning which took place at two locations in Horns’ property (one some 3 m or so and the other some 6 m or so from the tree’s trunk) are well within the Horns’ property. Mr Horn has advised us, in response to a question, that he took no third party advice prior to undertaking the poisoning.

16. We are satisfied, on the balance of probabilities, that the relevant test in s 10(2)(a) of the Act is satisfied in that it is likely, in the near future, that a significant portion of the Peppercorn might fail and cause damage to Mr and Mrs Horns’ garage.

17. However, we are also satisfied that the predominant cause for this likely failure is the death, on the centre eastern side of the tree, of the major branch noted above (which death was caused by the applicants’ poisoning). We consider this to be the dominant cause of this tree’s overall decline. For this reason we conclude that the Peppercorn should be removed in its entirety but that the applicants should pay for its removal.

18. We therefore propose to order that the Peppercorn be removed within three months from the date of the orders; that the same qualifications and removal standards are to apply as for the Peppermint [that is removal of the Peppercorn is to be undertaken by an at least AQF level 3 arborist with appropriate insurances. Removal of the Peppercorn is to be to a stump height not greater than 300 mm above the existing ground level. The contractor engaged by them for this purpose is permitted access (on reasonable notice and at a reasonable time of day) to the respondent’s property to do this. Ms Latter is entitled to supervise such access].

19. The removal of the Peppercorn is to include removal of all tree elements from the respondent’s property. If the applicants elect to remove the Eucalyptus nicholii, all elements of it are also to be removed from the respondent’s property at the applicants’ expense.

Commissioner of the Court Acting Commissioner of the Court