The Owners – Strata Plan No. 47463 v The Owners – Strata Plan No. 76269 [2018] NSWLEC 1598

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No. 47463 v The Owners – Strata Plan No. 76269 [2018] NSWLEC 1598 Hearing dates: 24 October 2018 Date of orders: 24 October 2018 Decision date: 24 October 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [9] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence – fence requires replacement – debris from trees – whether trees must be removed Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Texts Cited: AS4373 Pruning of amenity trees WorkCover NSW Code of Practice for the Amenity Tree Industry Category: Principal judgment Parties: The Owners – Strata Plan No. 47463 (Applicant) The Owners – Strata Plan No. 76269 (Respondent) Representation: M Mohamed, agent (Applicant) M Apiata, agent (Respondent) File Number(s): 2018/202857 Publication restriction: No

Judgment

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

Background 1. Seven trees grow on the property of the Owners of Strata Plan No. 76269 ('the respondents') in Regents Park, close to their eastern boundary: four she-oaks and three wattles. 2. A significant section of the timber paling fence along the common boundary on their eastern side has collapsed. 3. The Owners of Strata Plan No. 47463 ('the applicants'), who share this common boundary, say the fence's collapse resulted from rotting fence posts, in turn a result of excess water that flowed from their roof during heavy rain when their gutters were blocked with debris from the trees. They have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for all seven trees to be removed and for a 46-metre section of the fence, which has collapsed, to be replaced. 4. The respondents are willing to remove dead or dying trees and to share the cost of replacing the failed section of the boundary fence, which they say collapsed due to posts that were placed directly in soil without a concrete footing, causing them to rot. They wish to keep the healthy she-oaks.