Lees v Primrose [2014] NSWLEC 1122

Land and Environment Court New South Wales

Medium Neutral Citation: Lees v Primrose [2014] NSWLEC 1122 Hearing dates: 24 June 2014 Decision date: 24 June 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld in part (see orders in paragraph [19]). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for tree pruning; fence repair; root pruning. Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Liang & anor v Marsh & anor [2011] NSWLEC 1026 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: APPLICANT Brendan Lees

RESPONDENT Jan Primrose File Number(s): 20224 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The application 1In a relatively leafy area of Baulkham Hills a mature Black Bean tree (Castanospermum australe) grows in the rear garden of a residential property. Ms Primrose ("the respondent") has owned and lived at the property since 1998. The tree is close to the property's south-eastern boundary, which is the common boundary with the neighbouring property owned by Mr Lees ("the applicant"). The tree's crown extends well over Mr Lees' rear garden. Mr Lees has owned and lived at his property since June 2013. 2Mr Lees is concerned that the tree has caused damage to the boundary fence, and that it is likely to cause damage to his dwelling, drainage pipes and landscaping. He is also concerned that falling seed pods are likely to cause injury to his children or anybody else in the garden. He has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 for the tree to be removed, for surface roots to be removed from his garden and, pursuant to the Dividing Fences Act 1991, for the fence along the common boundary to be replaced. 3Ms Primrose values the tree, especially its contribution to the amenity of her garden and to local environmental values. She sees no reason to interfere with the tree and says there is only minor damage to the fence, not warranting any action.