Low v Muir

[2012] NSWLEC 1092

Land and Environment Court

New South Wales

Medium Neutral Citation:

Low v Muir & Anor [2012] NSWLEC 1092

Hearing dates:

12 April 2012

Decision date:

12 April 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)The respondents are to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to remove trees T2 (Hackberry), T5 (Fig), T6 (Hackberry) and T7 (Cassava) to no more than 300mm above ground level. If stumps remain they are to be poisoned immediately.

(2)The works in (1) are to be carried out in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry.

(3)The works in (1) are to be completed within 60 days of the date of these orders.

(4)The applicant is to provide any access to her property required for the works in (1) on reasonable notice and at a reasonable time of the day.

(5)Following removal of the trees the parties are to engage a fencing contractor to replace the boundary fence, from the western end where it meets Denison Lane to the point where it meets the applicant's dwelling, with a 1.8 metre tall wooden paling fence or other fence as agreed by the parties.

(6)The works in (5) are to be completed within 90 days of the date of these orders.

(7)The respondents and the applicant are each to pay the fencing contractor 50% of the cost of the works in (5).

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; removal ordered; consent orders; fence.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006
Dividing Fences Act 1991 No 72

Cases Cited:

Breen & Anor v Caronna & Anor [2008] NSWLEC 293

Category:

Principal judgment

Parties:

Fay Low (Applicant)

Alison Muir and William Muir (Respondents)

Representation:

Leone Cohen (Agent for the Applicant)

Alison Muir (Respondent in person)

File Number(s):

20030 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. ACTING COMMISSIONER: Ms Low has lived at her property in Newtown since 1972. In early 2011 repair works were required to sewer pipes on her property. During these works the plumber pointed out that roots were blocking the pipes. Ms Low contends that the roots belong to trees on her neighbours' property. She also contends that roots from the neighbouring trees are cracking and lifting concrete paving in her rear garden. She seeks removal of six trees. Mrs Muir, an owner of the adjoining property on which the trees grow, has lived at her property for more than 15 years. She is concerned about the expense of removing trees. The application is made under the Trees (Disputes Between Neighbours) Act 2006.

1. During the onsite hearing it became apparent that there was no dispute that the trees had caused damage and that both parties shared at least some notions of what might be regarded as a suitable outcome. They were provided with the opportunity to discuss the matter with a view to…