Land and Environment Court
of New South Wales
CITATION: Horn & anor v Latter [2007] NSWLEC 744 PARTIES: APPLICANTS
RESPONDENT
Colin & Judith Horn
Lesha LatterFILE 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 removalLEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 23 October 2007 EX TEMPORE JUDGMENT DATE: 23 October 2007 LEGAL REPRESENTATIVES: APPLICANTS
RESPONDENT
In person
In person
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE C
THYER AC23 October 2007
07/20723 Colin & Judith Horn v Lesha Latter
JUDGMENT
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 atThis decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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…
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- AGLC
- Horn & anor v Latter [2007] NSWLEC 744
- Case
- [2007] NSWLEC 744
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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