Minns v Turton

[2018] NSWLEC 1688

Land and Environment Court

New South Wales

Medium Neutral Citation:	Minns v Turton [2018] NSWLEC 1688
Hearing dates:	20 December 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   Within 60 days of the date of these orders the respondents are to repair the fence along the common boundary so that within 5 m of each tree the top of the fence is no more than 50 mm out of the vertical plane above the bottom of the fence. (2)   The respondents are to give the applicant 7 days’ notice of the works. (3)   The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the trees have caused damage – severity of damage – whether there is a risk of injury – what actions are required
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category:	Principal judgment
Parties:	Kathryn Anne Downey Minns (Applicant) David Turton (First Respondent) Joanne Turton (Second Respondent)
Representation:	Counsel: D Downey, agent (Applicant) Solicitors: J Wilson, Barker Love Lawyers (Respondents)
File Number(s):	316995 of 2018
Publication restriction:	Nil

Judgment

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

Background

1. Hanging over Ms Minns’ back yard in New Lambton are two Box Elder (Acer negundo) trees (‘the trees’) that grow on the neighbouring property owned by David and Joanne Turton (‘the respondents’). Ms Minns (‘the applicant’) has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders to remedy or prevent several issues she says are caused by the two trees. These are:

• Overhanging branches shade her yard and limit the growth of lawn near the fence.

• Roots have displaced the steel panel fence along the boundary.

• Several roots grow at and above her ground surface creating a trip hazard.

• Small roots have been found in her terracotta sewer pipe. While they have not caused damage, she fears they might cause damage and roots might also damage other services in the vicinity, including stormwater pipes and electricity and telephone cables.

2. The orders Ms Minns seeks include pruning of overhanging branches, removal of surface roots, installation of a root barrier on the Turtons’ property along the boundary, and repair of the fence.

3. The Turtons submit that the fence displacement is minor and easily repaired; overhanging limbs have not caused damage; the trip hazard is minor and easily removed by top dressing over roots or cutting some roots; and there is no evidence that roots have damaged any services or are likely to do so in the near future.

Findings

4. The trees are healthy and provide amenity to both properties. On this hot afternoon their shade delivered a cool area for this onsite hearing.

5. Only small branches are close to the fence, but they have not caused any damage. Shade from overhanging branches has suppressed some lawn growth near the fence. This might be considered damage but is so minor that it is not a matter for which the Court will make any orders.

6. The fence is obviously displaced by tree roots but it could be repaired by resetting the alignment of several posts. The fence has been here for some time and it would be unreasonable to expect that it has the condition of a new fence. I will make orders for the respondents to realign the fence within 5 metres of each tree.

7. I accept the respondents’ submissions that the mere presence of roots near services does not satisfy the jurisdictional test at s 10(2)(a) of the Trees Act. There is no evidence that roots are likely to cause damage in the near future. The applicant is aware that the condition of her terracotta pipes is such that she may wish to line them to avoid damage or leaks in future. If other services are damaged in future the applicant could make a new application.

8. I also accept the respondents’ submissions that the risk associated with surface roots is relatively low. If the applicant wishes to reduce the trip hazard, she could easily top-dress over the roots, as the respondents suggested. I see no need for Court orders to deal with this.

Orders

9. As a result of the foregoing, the orders of the Court are:

1. Within 60 days of the date of these orders the respondents are to repair the fence along the common boundary so that within 5 m of each tree the top of the fence is no more than 50 mm out of the vertical plane above the bottom of the fence.

2. The respondents are to give the applicant 7 days’ notice of the works.

3. The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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