Lowe v Tovey [2018] NSWLEC 1644

Land and Environment Court New South Wales

Medium Neutral Citation: Lowe v Tovey [2018] NSWLEC 1644 Hearing dates: 11 December 2018 Date of orders: 11 December 2018 Decision date: 11 December 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; claim for compensation; apprehension of injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Robynne Lowe (Applicant) Christine Tovey (Respondent) Representation: R Lowe, litigant in person (Applicant) C Tovey, litigant in person (Respondent) File Number(s): 2018/267892 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. ACTING COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mrs Lowe of Port Macquarie, relating to four Blackbutt trees (Eucalyptus pilularis) (the trees) located in the adjacent neighbouring property.

Background 1. The respondent, Ms Tovey, purchased her large residential property more than 31 years ago with the trees already established and mature in the rear yard. At this time, the trees overhung a largely empty five acre paddock, containing a house located far from Ms Tovey's boundary. While it is often difficult to gauge tree age, based on the arboricultural expertise I bring to the court, an estimate of 60 to 80 years seems reasonable. 2. In about 2000, this paddock was developed and houses were built relatively close to the northern boundary of Ms Tovey's rear yard. In 2010, Mrs Lowe purchased her property and issues arising from the tree's overhanging branches have resulted in a dispute between the parties since then. 3. The trees are located loosely parallel to Ms Tovey's rear northern side boundary, with the distances between the four individual trees and the boundary ranging from about one to four metres. This boundary runs approximately east – west, and is delineated by a tall fence. 4. Though this pattern suggests that these trees have been planted, there is sufficient lack of uniformity in terms of spacing, between the trees, and between the four individual trees and the boundary, to consider that some or many of the trees may be remnant natural vegetation. The presence of at least two mature Tallowood trees (Eucalyptus microcorys) growing close to and intermingled with the four trees near the boundary, plus other large, mature Blackbutt trees of similar or greater age growing within the rear yard add weight to this notion. Both these species are common and dominant in local ecological communities. 5. Tree height varies from about 20 to 30 metres, with ascending structural trunks typical of these species, and with branches extending over parts of Mrs Lowe's rear yard and house by about seven metres.