Heggs v Carter & Morris [2010] NSWLEC 1247

Land and Environment Court of New South Wales

CITATION : Heggs v Carter & Morris [2010] NSWLEC 1247

APPLICANTS R and A Heggs PARTIES : RESPONDENTS Mr B Carter Ms A Morris

FILE NUMBER(S) : 20353 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Future damage Injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 25/08/2010

DATE OF JUDGMENT: 25 August 2010

EX TEMPORE JUDGMENT DATE : 25 August 2010

APPLICANTS Mr R and Mrs A Heggs [litigants in person]

LEGAL REPRESENTATIVES: RESPONDENTS Mr B Carter [litigant in person] Ms A Morris {litigant in person]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

25 August 2010

20353 of 2010 Heggs v Carter & Morris

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Mayfield against the owners of a tree growing on an adjoining property. 2 The applicants are seeking the removal of the tree as they contend that it could cause damage to their property and may cause injury to people. 3 The tree is a mature Schinus areira (Pepper Tree) growing in the north-western corner of the respondents' property. The tree appears healthy with very little dead wood in evidence. 4 It is clear that the tree has been substantially pruned in the past as there is a large pruning cut on the north-western side of the tree close to the boundary with the applicants. This may have been a secondary stem. There are small fungal fruiting bodies on the surface of the old wound that are likely to be those of a saprophytic fungus. The fruiting bodies are not those of the common wood decay fungi. There are no signs of decay or other structural defects in the trunk or canopy of this tree. 5 The applicants purchased their property, a villa unit at the rear of the unit block, about 5 years ago. According to the applicants, as a condition of their purchase of the property, the real estate agent organised for the removal of a large branch that was overhanging the dwelling. Another smaller branch was shortened. The evidence of the pruning cuts remains on the tree. 6 The respondents purchased their property about 13 months ago and so were not the owners when this pruning was undertaken. 7 At present, less than 5% of the canopy overhangs the applicants' property. However, they remain concerned that future damage may occur to their property.