Schellings v The Estate of the Late Patricia Rofe [2009] NSWLEC 1332

Land and Environment Court of New South Wales

CITATION : Schellings v The Estate of the Late Patricia Rofe [2009] NSWLEC 1332

APPLICANTS Ron Schellings PARTIES : Sandra Schellings

RESPONDENT The Estate of the Late Patricia Rofe

FILE NUMBER(S) : 20447 of 2009

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- pruning or removal of tree: risk of damage to property or injury to person(s)

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 11 September 2009

EX TEMPORE JUDGMENT DATE : 11 September 2009

APPLICANT Ron Schellings (litigant in person) LEGAL REPRESENTATIVES: Sandra Schellings (litigant in person)

RESPONDENT Robynne Lever (daughter)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

11 September 2009

20447 of 2009

Ron and Sandra Schellings v The Estate of the late Patricia Rofe

JUDGMENT 1 COMMISSIONER: A mature Sydney Blue Gum (the tree) is growing on 5 Mobbs Road, Terrigal (the property) about 0.5 m from the western dividing fence. The property is owned by the Estate of the late Patricia Rofe. Mrs Robynne Lever attended the hearing for the Estate.

2 Mr and Mrs Schellings are the owners of 13 Avon Close, Terrigal the adjoining property to the west. The tree is located about halfway along their eastern boundary, and its western branches overhang their grassed backyard and swimming pool by about 8 m. They claim that the tree has dropped numerous dead branches onto their property since they purchased in 2006, and dropped a live branch about 4 m long in June 2009. They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify or prevent property damage, and to prevent risk of injury to people. They seek orders that the tree be pruned or removed at the owner's expense.