Schultz & anor v Bohringer

Case [2007] NSWLEC 560

Land and Environment Court


of New South Wales


CITATION: Schultz & anor v Bohringer [2007] NSWLEC 560
PARTIES:

APPLICANTS
Melissa Schultz & Jamie Skontouroglou

RESPONDENT
Gail Bohringer
FILE NUMBER(S): 20676 of 2007
CORAM: Moore C
KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Consent orders
LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING: 28 August 2007
EX TEMPORE JUDGMENT DATE: 28 August 2007
LEGAL REPRESENTATIVES:

APPLICANTS
In person

RESPONDENT
In person


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      MOORE C

      28 August 2007

      07/20676 Melissa Schultz & Jamie Skontouroglou v Gail Bohringer

      JUDGMENT

1 COMMISSIONER: This an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) to remove a Norfolk Island Pine (Araucaria heterophylla) (the tree) located on 44 Beryl Street, Coffs Harbour.

2 I have attended the site and had the opportunity of inspecting the tree from the applicants’ side of the fence.

3 During the course of the view, the parties reached agreement to share, equally, the cost of removal of the tree.

4 I inspected the damage which had been caused by a large root of the tree to the upper, non-structural element of the applicants’ retaining wall. The extent of the past damage is sufficient to enliven the Court’s jurisdiction pursuant to the first test posed by s 10(2)(a) of the Act.

5 I am also satisfied that it is prudent to give effect to the agreement between the parties that the tree be removed. Consent orders will be made to give effect to this agreement.

Tim Moore


Commissioner of the Court

Details
AGLC
Schultz v Bohringer [2007] NSWLEC 560
Case
[2007] NSWLEC 560
Decision Date

CaseChat Overview and Summary

Schultz and Skontouroglou applied to the Land and Environment Court of New South Wales for an order to remove a Norfolk Island Pine from Bohringer’s property, located at 44 Beryl Street, Coffs Harbour. The application was made pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006. The applicants claimed that the tree had caused damage to their retaining wall and that it posed a risk to their property. The key issue for the court was whether the tree should be removed and, if so, whether to make consent orders to reflect the agreement between the parties.

The court had to determine whether the damage to the applicants' retaining wall was sufficient to justify the removal of the tree under section 10(2)(a) of the Act. The court also needed to consider the agreement between the parties to share the cost of the tree’s removal equally. The court found that the damage to the retaining wall was sufficient to meet the threshold for removal under the Act. Furthermore, the court was satisfied that it was prudent to give effect to the agreement between the parties.

The court made consent orders to give effect to the agreement between the parties to remove the tree. The court found that the parties had reached an agreement to share the cost of removal equally and that it was in the best interest of both parties to proceed with the removal. The court also found that the damage to the applicants’ retaining wall was sufficient to justify the removal of the tree under the Act. The court noted that the agreement between the parties was a practical and amicable resolution to the dispute.

The court ordered that the tree be removed from Bohringer’s property and that the cost of removal be shared equally between the parties. The court also ordered that the parties cooperate in the removal of the tree and that they take all reasonable steps to minimise any further damage to each other’s 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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