Stewart v Harmohinder Sharma [2008] NSWLEC 1099

Land and Environment Court of New South Wales

CITATION : Stewart v Harmohinder Sharma [2008] NSWLEC 1099

APPLICANT David and Janice Stewart PARTIES : RESPONDENT Harmohinder Sharma

FILE NUMBER(S) : 21222 of 2007

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Compensation costs, removal of trees, installation of boundary fence

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 12/02/2008

EX TEMPORE JUDGMENT DATE : 12 February 2008

APPLICANT David and Janice Stewart, litigants in person

LEGAL REPRESENTATIVES: RESPONDENT Dr Mittal for Harmohinder Sharma, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

12 Febraury 2008

21222 of 2007

David and Janice Stewart v Harmohinder Sharma

JUDGMENT The decision was given at the hearing on 12 February 2008. This written judgment reflects the findings and the background documentation provided as part of the proceedings. 1 ACTING COMMISSIONER: Mr and Mrs Stewart bought their property with an old, concrete-block garage in the backyard. Located near the back boundary, the floor of the garage is up to 1 m below ground level. The walls are not reinforced, and surrounding soil is in contact with the walls. The Stewarts have built a studio on top of the garage, and a swimming pool on the uphill side of the garage. Now, when the garage is almost 50 years old, a below ground section of wall has cracked and water leaks in during wet weather. The Stewarts claim that roots of a few small trees growing on the neighbour's property have cracked the wall. They also claim that branches of the trees have damaged the studio. It seems that early resolution of some issues was hindered by misunderstandings of common law rights to prune overhanging branches, and confusion over the process to apply for pruning of a small Pittosporum tree under the Parramatta City Council Tree Preservation Order.