Terrey v Freeman & anor [2012] NSWLEC 1228

Land and Environment Court New South Wales

Medium Neutral Citation: Terrey v Freeman & anor [2012] NSWLEC 1228 Hearing dates: 14 August 2012 Decision date: 14 August 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Future damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152 Liang & anor v Marsh & anor [2011] NSWLEC 1026 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Ms K L Terrey (Applicant) Mr R and Mrs P Freeman (Respondents) Representation: Applicant: Ms Terrey (Litigant in Person) Respondents: Mr R and Mrs P Freeman (litigants in person) File Number(s): 20305 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant in these proceedings purchased her property in Sawtell in December 2011, approximately eight months ago. The application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) was made about three months after the purchase. 2The applicant is seeking the removal of a Norfolk Island Pine and the maintenance of three other nominated trees in order to prevent future damage to her property. Specifically she wants to ensure that roots from the respondents' trees will not cause damage to the dividing fence, a low masonry retaining wall, and a larger more substantial retaining wall. 3All of the trees are growing at the rear of the respondents' property. The respondents planted the Norfolk Island Pine as a seedling some time shortly after they moved onto their property in 2000. It is growing in the far north-western corner of their garden. Its trunk is approximately 150mm from the timber dividing fence. 4The other trees are: Tree 2 - a Mango planted some 3.5-4m from the dividing fence; Tree 3 is most likely a Red Cedar about 1.5m from the fence; and Tree 4 - a severely lopped Umbrella Tree within a metre of the south-western corner of their property. There are other assorted trees and shrubs, including some palms, that are closer to the fence but these are not subject to the application. 5The respondents do not wish to remove the trees and contend that they regularly maintain their trees.