Neal v Smith

[2017] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:	Neal v Smith & anor [2017] NSWLEC 1014
Hearing dates:	13 January 2017
Date of orders:	13 January 2017
Decision date:	13 January 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [17]
Catchwords:	TREES [NEIGHBOURS] Damage to fence;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Gordon Neal (Applicant) Sidney & Eleanora Smith (Respondents)
Representation:	Applicant: Janine Wilson (Solicitor) Respondent: Sidney Smith (Litigant in person)   Solicitors Applicant: Baker Love Lawyers
File Number(s):	310337 of 2016

Judgment

1. COMMISSIONER:   In 2009 the applicant purchased his Bolton Point property on Lake Macquarie. The respondents in this matter own the adjoining property to west and have lived there for 39 years.

2. Approximately 35 years ago, the first respondent and his son constructed a part timber/part woven ‘Villaboard’ fence on part of the common boundary between the parties’ properties. The fence did not extend to the northern end of the applicant’s land. The southern end of the boundary fence (towards the lake) is a low, open, timber fence.

3. Growing on the respondents’ property, along the common boundary, is a row of trees and shrubs comprising a range of species. According to the respondents, the trees are ‘lopped’ twice a year to restrict their height.

4. The applicant contends that the existing fence between the properties is severely impacted by all of the 18 trees identified in the application claim form. He asserts that the timber is rotten, has missing sections, and cannot be replaced because of the growth of the trees.

5. Of particular concern to both parties are trees 1-4. This section of the boundary was unfenced. The respondents particularly value these trees as they screen the two storey dwelling to the north-east from their back verandah and backyard. As the trees partially straddle the boundary, but are substantially on the respondents’ land, installation of a new fence on the boundary would require their removal.

6. The applicant states that because of a failure to come to an agreement with the respondents about the repair of the fence, which would have necessitated the removal or pruning of a number of trees, the applicant installed a Colorbond fence on his side of the boundary.

7. The applicant submits that one tree, a Melaleuca, (identified in the claim form as T3 but was observed during the hearing to be T4) was pushing the new Colorbond fence out of alignment. He also contends that trees 1-9 are overhanging the fence line and are likely to cause damage to his fence.

8. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) and s 13A of the Dividing Fences Act 1991 (Fences Act) for orders seeking : the removal of all trees on the boundary necessary to clear the boundary; removal of the dilapidated fence; removal of the damaged Colorbond fence; installation of a new Colorbond fence on the actual boundary [essentially relocation of the Colorbond fence to the boundary]; equal sharing of the costs of all above works; and, annual pruning of the trees to prevent overhanging and or contact with the new fence.

9. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

10. Injury is not pressed.

11. As the applicant is concerned, to some extent, about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing.

12. Section 13A of the Dividing Fences Act 1991 is only engaged if s 10(2) is satisfied in regards to a portion of a fence being damaged by a tree to which the Trees Act applies.

13. During the on-site hearing I made the following observations.

• The original boundary fence is showing signs of its age; in particular, the timber top plate is showing advanced signs of weathering. A number of the woven ‘Villaboard’ slats have failed. However, I observed the fence to be solid, functional and sufficient for its purpose. Two of the trees had branches touching the top plate but did not appear to have caused any damage to it; or if they had, the impact of the trees is minor when compared to material failure of the timber.

• The majority of the Colorbond fence was still standing, including the whole frame and base. Several panels towards the northern end had been removed. The metal fence is in excellent order. However, it is feasible that one co-dominant stem of the Melaleuca, the fourth tree from the northern end could have been pressing on a panel, and if it remains, could in the near future cause damage to the frame. None of the other trees appear to have caused, or could in the near future cause, damage to the metal fence.

Findings

14. I am not satisfied to the extent required by s 10(2) that any of the trees the subject of the application have caused, or are likely in the near future to cause, damage to the original dividing fence. As stated above, the condition of the top plate is a function of the age and weathering of the timber. If I am wrong in this, I consider the impact of the trees to be de minimus and not sufficient to warrant an order of the Court.

15. As s 10(2) is not met for the original fence, no order can/will be made in accordance with s 13A of the Fences Act.

16. I am satisfied that part of the new metal/Colorbond fence on the applicant’s land could in the near future be damaged by one of the co-dominant stems of T4 and orders will be made for the removal of that stem. While s 10(2) is engaged for that part of the new fence, as a matter of discretion, no orders will be made under the Fences Act to relocate it to the actual boundary. Whilst not particularly attractive, the original fence is still solid and functional. The trees provide a useful screen. The new fence is in perfectly good order and I can see no justification for ordering its expensive relocation and the consequential removal of several trees, particularly when the applicant took it upon himself to construct the fence on his land.

Orders

17. Therefore as a consequence, the Orders of the Court are:

1. Within 30 days of the date of this judgment, the respondents are to engage and pay for an arborist with a minimum qualification of AQF level 3 in Arboriculture to remove the east-facing co-dominant stem of the Melaleuca identified as the fourth tree to the south of the northern end of the common boundary between the parties’ properties.

2. The stem is to be removed as close as is reasonable and safe to do so to the point indicated by the tape placed on the stem and in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.

3. The application with respect to the dividing fence is dismissed.

____________________________

Judy Fakes

Acting Commissioner of the Court

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Decision last updated: 18 January 2017