Clemson v Freeburn [2010] NSWLEC 1298

Land and Environment Court of New South Wales

CITATION : Clemson v Freeburn [2010] NSWLEC 1298

APPLICANT Mrs J Clemson PARTIES : RESPONDENT Mrs S Freeburn

FILE NUMBER(S) : 20630 of 2010

CORAM: Fakes C - Galwey AC

KEY ISSUES: TREES (NEIGHBOURS) :- Consent Orders; damage to property, injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 29/10/10

DATE OF JUDGMENT: 29 October 2010

EX TEMPORE JUDGMENT DATE : 29 October 2010

APPLICANT Mr M Robach [agent]

LEGAL REPRESENTATIVES: RESPONDENT Mr M Mulock [solicitor] SOLICITORS Burston, Cole & Mulock Pty Limited

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C Galwey AC

29 October 2010

20630 of 2010 Clemson v Freeburn

JUDGMENT 1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Penrith against the owner of trees growing on an adjoining property. The applicant was represented by her son-in-law Mr Robach and the respondent by her solicitor Mr Mulock. 2 The applicant contends that the trees have caused damage to her property and pose a risk of injury to persons. She also seeks compensation for the damaged property. 3 The orders sought by the applicant are the maintenance of the trees including the installation of a root barrier or the removal of the trees. These orders are sought in order to prevent further damage. The applicant would prefer the trees to remain. 4 The application arose as a result of an incident where a visitor to the applicant's property tripped on a raised section of concrete and threatened to take legal action against the applicant. The unevenness of the paving has also limited access to the site by the applicant's wheelchair-bound grandson.