Peacock v Hanna & anor [2017] NSWLEC 1323

Land and Environment Court New South Wales

Medium Neutral Citation: Peacock v Hanna & anor [2017] NSWLEC 1323 Hearing dates: 7 June 2017 Date of orders: 07 June 2017 Decision date: 07 June 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 25. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; tree already removed; fence; orders for fence replacement. Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riordan & Anor [2011] NSWLEC 1009 Category: Principal judgment Parties: Mary Peacock (Applicant) Niki and George Hanna (Respondents) Representation: Ms Mary Peacock, Litigant in Person (Applicant) Mr Daniel Massey, Solicitor (Respondents) File Number(s): 59247 of 2017

Judgment

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

Background 1. Until recently a Tree of Heaven (Ailanthus altissima) grew on Mr and Mrs Hanna's Granville property, which is occupied by tenants. Most likely self-sown, the tree grew against the boundary fence shared with the neighbouring property, owned by Ms Peacock ('the applicant'). The tree was removed by the Hannas ('the respondents') in October 2016. It was poisoned and its stump was ground out. 2. Ms Peacock has applied to the Court, pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders to remedy damage to her property. Clarifying the orders she seeks at the onsite hearing, Ms Peacock wants: 1. The timber paling fence along the common boundary to be removed and replaced, with the cost shared equally by the parties. 2. A low retaining wall constructed at the base of the fence, where necessary, along the common boundary. She says she is willing to pay for this component. 3. The concrete path between her dwelling and the common boundary removed at the Hannas' expense. 4. Roots beneath the path professionally removed, poisoned or otherwise treated, at the Hannas' expense. 5. Her laundry steps removed and replaced at the Hannas' expense. 6. Services beneath the path to be located at the Hannas' expense. 7. The alignment of an air-conditioning unit to be adjusted at the Hannas' expense.