Carter v Fraser [2022] NSWLEC 1149

Land and Environment Court New South Wales

Medium Neutral Citation: Carter v Fraser [2022] NSWLEC 1149 Hearing dates: 15 December 2021 Date of orders: 29 March 2022 Decision date: 29 March 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that the application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –tree growing near boundary and fence; refuse from trees blowing into applicant's land; damage claimed; apprehension of further damage Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7,8,9,10,12 of Pt 2 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Teresa Carter (Applicant) Beverly Fraser (Respondent) Representation: T Carter (Self-represented) (Applicant) B Fraser (Self-represented) (Respondent) File Number(s): 2021/285068 Publication restriction: No

Judgment 1. COMMISSIONER: The Applicant, Teresa Carter, and the Respondent, Beverly Fraser, share two perpendicular boundaries between their properties in Rutherford, in the Hunter Valley. Beyond the Applicant's rear boundary, which runs from north-west to south-east, the Respondent planted four Casuarina cunninghamiana (River She-Oaks) (the trees), three of which are located about two metres from the common boundary, and one about five metres. The trees average about 10 metres in height with a relatively narrow canopy spread, typical of the species at this age. 2. Having constructed their dwelling in 2007, in 2010 Ms Carter and her husband commenced construction of an inground pool and a shed a few metres inside their rear boundary. The parties dispute whether the trees were planted prior to the pool's construction; the Applicant says they weren't while the Respondent says they were, but this is immaterial to the outcome of this case. 3. In February 2019, Ms Carter wrote to the Respondent, initially informing Ms Fraser that she had "an issue with the huge mess" that the trees were causing and that "the pine needles keep blocking our pool cleaner and stopping the pool pump". Ms Carter requested that the trees be significantly pruned back to mitigate this impact, and also noted concern about future damage that may result from a root of one of the trees growing under the common boundary fence. 4. Ms Carter sent additional letters to Ms Fraser in November 2019 and November 2020, outlining "the ongoing damage caused by" the Respondent's trees, specifically to the pool filter and pump. In March 2021, the Applicant was unsuccessful in organising mediation through a Community Justice Centre (CJC) as the Respondent was unwilling to participate. Ms Carter next sought legal advice, and a letter from Tranter Lawyers to Ms Fraser dated 17 May 2021 notes at 2.1 that "The trees have persistently caused, and continue to cause, nuisance and damage to our client's property." 5. This letter included an ultimatum that the Respondent remove the trees within 45 days. In June 2021, the Respondent had the tree pruned, but Ms Carter noted in a final letter to Ms Fraser soon after that she was dissatisfied with the "minimal pruning of the trees", and that tree removal was the only satisfactory solution to the problem. 6. As a result, Ms Carter lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), in order to remedy damage from the trees, and prevent damage that she believes is likely in the near future.