Minns v Turton [2018] NSWLEC 1688

Land and Environment Court New South Wales

Medium Neutral Citation: Minns v Turton [2018] NSWLEC 1688 Hearing dates: 20 December 2018 Date of orders: 20 December 2018 Decision date: 20 December 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Within 60 days of the date of these orders the respondents are to repair the fence along the common boundary so that within 5 m of each tree the top of the fence is no more than 50 mm out of the vertical plane above the bottom of the fence. (2) The respondents are to give the applicant 7 days' notice of the works. (3) The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the trees have caused damage – severity of damage – whether there is a risk of injury – what actions are required Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Kathryn Anne Downey Minns (Applicant) David Turton (First Respondent) Joanne Turton (Second Respondent) Representation: Counsel: D Downey, agent (Applicant) Solicitors: J Wilson, Barker Love Lawyers (Respondents) File Number(s): 316995 of 2018 Publication restriction: Nil

Judgment

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

Background 1. Hanging over Ms Minns' back yard in New Lambton are two Box Elder (Acer negundo) trees ('the trees') that grow on the neighbouring property owned by David and Joanne Turton ('the respondents'). Ms Minns ('the applicant') has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders to remedy or prevent several issues she says are caused by the two trees. These are: * Overhanging branches shade her yard and limit the growth of lawn near the fence. * Roots have displaced the steel panel fence along the boundary. * Several roots grow at and above her ground surface creating a trip hazard. * Small roots have been found in her terracotta sewer pipe. While they have not caused damage, she fears they might cause damage and roots might also damage other services in the vicinity, including stormwater pipes and electricity and telephone cables. 1. The orders Ms Minns seeks include pruning of overhanging branches, removal of surface roots, installation of a root barrier on the Turtons' property along the boundary, and repair of the fence. 2. The Turtons submit that the fence displacement is minor and easily repaired; overhanging limbs have not caused damage; the trip hazard is minor and easily removed by top dressing over roots or cutting some roots; and there is no evidence that roots have damaged any services or are likely to do so in the near future.