The Owners – Strata Plan No. 11351 v Burton [2018] NSWLEC 1617

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No. 11351 v Burton [2018] NSWLEC 1617 Hearing dates: 22 October 2018; 19 November 2018 Date of orders: 19 November 2018 Decision date: 19 November 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Within 30 days of the date of these orders, the respondent is to remove all live parts of the tree from the wall. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to wall – removal of tree Legislation Cited: Dividing Fences Act 1991 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: The Owners – Strata Plan No. 11351 (Applicants) Colin Craig Burton (Respondent) Representation: A Bugeja, agent (Applicants) C Burton, litigant in person (Respondent) File Number(s): 2018/155565 Publication restriction: No

Judgment

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

Background 1. A small fig tree ('the tree') grows on the wall along the common boundary that separates two Paddington properties, one belonging to the Owners of Strata Plan No. 11351 ('the applicants'), the other to Colin Burton ('the respondent'). The stone boundary wall is cracking along mortar between its blocks. The applicants asked Mr Burton to remove the tree, which grows on his side of the wall. Mr Burton has not removed the tree, so the applicants applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for the tree to be removed. 2. Due to an error in communications, only the applicants were present when I attended the property in October. I observed the situation and subsequently heard submissions in Court today (19 November). 3. The fig tree is attached to the boundary wall on Mr Burton's side, with its crown extending above the top of the wall. Its roots extended down into the ground on Mr Burton's side. The crown has been pruned and roots severed approximately one metre above ground level. According to the applicants, this pruning took place approximately two months earlier, one day before the directions hearing. 4. According to the Trees Act, the matters I must first determine are: * Does the tree grow on land adjoining the applicants'? * Has the tree caused damage, or is it likely to cause damage, to their property? 1. If both these questions are answered affirmatively, I must consider a range of matters set out at s 12 of the Trees Act before making any orders to appropriately remedy or prevent the damage.