Grover v Rulli [2009] NSWLEC 1259

Land and Environment Court of New South Wales

CITATION : Grover v Rulli [2009] NSWLEC 1259

APPLICANT William Frank Grover PARTIES : RESPONDENT Libby Rulli

FILE NUMBER(S) : 20320 of 2009

CORAM: Murrell C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 28 July 2009

EX TEMPORE JUDGMENT DATE : 28 July 2009

APPLICANT William Frank Grover (litigant in person) LEGAL REPRESENTATIVES:

RESPONDENT Libby Rulli (litigant in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C Thyer AC

28 July 2009

20320 of 2009 William Frank Grover v Libby Rulli

JUDGMENT

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

1 A Celtis tree is growing in the north western corner of the back yard of 322 Concord Road, Concord West (the property). The property is owned by Ms Rulli. The tree is situated less than 100 mm from the common boundary with the adjoining property to the west.

2 Mr Grover is the owner of 2 Bangalla Road, Concord West, the adjoining land to the west (the land). He makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to prevent property damage.

3 Mr Grover seeks orders for removal of the tree.

4 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person? 5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? The tree 6 The tree is a Celtis occidentalis (Hackberry) and is a tree within the meaning of that term in s 3(1) of the Act. The tree is situated wholly on the property, meeting s 4(3) and s 7 of the Act. As a consequence there is an application that the Court may determine.