Hrle and Wollman v Morcom [2018] NSWLEC 1410

Land and Environment Court New South Wales

Medium Neutral Citation: Hrle and Wollman v Morcom [2018] NSWLEC 1410 Hearing dates: 20 March 2018; 15 May 2018; 15 June 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [44] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by trees – other causes of damage – whether trees need to be removed – whether respondents could have prevented damage – whether respondents should contribute to repair costs – removal of asbestos Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Category: Principal judgment Parties: Muris Hrle (First Applicant) Grazyna Wollman (Second Applicant) David Morcom (First Respondent) Merle Morcom (Second Respondent) Representation: Counsel Tim Robertson SC (Applicants) Mary-Lynn Taylor, solicitor (Respondents)

Solicitors Woolf Associates (Applicants) Bartier Perry (Respondents) File Number(s): 2017/293820 Publication restriction: No

Judgment

Background 1. A battle-axe handle might once have been shaped from a single piece of timber, but the narrow handle of a battle-axe property in Balmain contained, until recently, three entire trees. In this inner-city suburb, trees compete for space with heritage buildings, narrow streets, parked cars and power lines. A tree does well to reach maturity. 2. The three trees grew in a narrow walkway that provides access to the main part of the property owned by Merle and David Morcom ('the respondents'). The trees grew against the dwelling on the neighbouring property, owned by Muris Hrle and Grazyna Wollman ('the applicants'). The applicants' dwelling is sufficiently old that it is, simultaneously, somewhat dilapidated and afforded some protection within a heritage conservation area. 3. The circumstances developed well before each party purchased their property. The dwelling now owned by the applicants was constructed long ago. The trees subsequently grew alongside their property, either planted or self-sown, the latter being the most likely. An extension, containing the present kitchen, was added to the back of the applicants' dwelling. 4. On the basis that the trees were damaging their property, the applicants asked the respondents to remove all three trees. The respondents obtained permission from their local council to remove two of the trees, and proceeded to remove one of them. They thought the other two trees were worth retaining, and reasoned that any damage they had caused could be remedied and further damage could be prevented with some engineering solutions. 5. The applicants, not satisfied that any solutions would adequately protect their dwelling in future, applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the remaining two trees to be removed and compensation of $3,000, being approximately one third of the cost of removing damaged weatherboards and replacing them with new ones.