Watman v Lynch & ors

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant in these proceedings has lived in the village of Burrawang for 37 years. During that time he has grown dahlias, and other bulbs, annuals and soft-wooded perennials in a garden bed along his southern boundary. 2In November 2012, the first, second and third respondents (the respondents) planted a Leyland Cypress hedge along the northern boundary of their property, adjoining the applicant's garden bed. 3In material tendered by the respondents, they state that they consulted their neighbours in regards to their intention to plant a hedge around their property for screening and privacy purposes. The respondents showed the applicant photographs of local hedges to demonstrate how they intended to maintain the hedge - relatively low and tightly clipped. 4At the time, the applicant raised no objections, although at the hearing he stated that he asked that the trees not be planted too close to the dividing fence so any pruning and maintenance could be carried out from the respondents' property. 5As part of the renovations to their cottage and associated landscaping, the respondents requested the replacement of the old, and reportedly, unattractive, wire fence that divided the parties' properties with a new paling fence. As the applicant wished to retain the wire fence, the respondents replaced and upgraded it at their expense. 6In January 2014, the respondents received a letter from the applicant raising concerns that the hedge had not been pruned. The respondents wrote back explaining they had problems with getting a contractor over Christmas and that the hedge would be pruned. 7In February 2014 the respondents received a letter from the applicant advising them that he would be seeking assistance from the Land and Environment Court in dealing with his concerns about the hedge. 8The application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 1979 (the Act) was filed with the Court on 18 February. 9Not long after, the respondents sold their property to the fourth and fifth respondents (the new owners). The applicant amended his application to include the new owners. 10The orders sought by the applicant are:

Conclusions and orders 25On the evidence before me, I cannot be satisfied that the 'damage', being the poor performance of the dahlias, if indeed that is 'damage', can be attributed to the respondents' trees. Even if I were to consider them a contributing factor, and thus engage the Court's jurisdiction to make orders under s9, as a matter of discretion I would not make any orders for the removal of the trees. The trees are young, healthy and still relatively small. It is entirely normal that roots from any plant growing along a common boundary will not confine themselves to the property on which they are planted. It is not unreasonable for a neighbour to plant a garden on their side of the fence. 26In regards to the root barrier, I note the standing offer by the respondents to install the root barrier and replace any damaged plants. However, I am not satisfied to the extent required by s 10 that this is an order I can or should make. 27While section 7 enables an owner of property to apply to the Court for orders to remedy, restrain or prevent damage to property on their land as a consequence of trees growing on adjoining land, there must be evidence to prove actual damage, at least on the balance of probabilities. If future damage is the concern, the applicant must satisfy the Court that the impending damage is substantial, irreparable and imminent. 28As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. 29Therefore after considering the evidence before me, the Orders of the Court are: (1)The application is dismissed.

Judy Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2014

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