Russell v Primrose [2009] NSWLEC 1298

Land and Environment Court of New South Wales

CITATION : Russell v Primrose [2009] NSWLEC 1298

APPLICANT A Russell PARTIES : RESPONDENT J Primrose

FILE NUMBER(S) : 20266 of 2009

CORAM: Moore SC - Dixon C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 5 August 2009

EX TEMPORE JUDGMENT DATE : 5 August 2009

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC DIXON C THYER AC

5 August 2009

20266 of 2009 Russell v Primrose

JUDGMENT

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

1 COMMISSIONERS: Mr Russell has lodged an application to Court pursuant to the Trees (Disputes Between Neighbours) Act 2006, concerning two Liquidambar trees located at the street frontage end of his neighbour's property. The applications are based on a variety of tests under s 10(2) of the Act (both under s 10(2)(a) and 10(2)(b)).

2 It is pertinent to commence this decision by noting that, although these proceedings are conducted with a significant degree of informality, they are nonetheless proceedings of a Court and that an applicant is under the duty to establish to the Court, on the balance of probabilities (that is the civil burden of proof – to the degree of comfortable satisfaction necessary for the purposes of our decision-making consistent with the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) that an appropriate basis for granting an application has been established. Having noted that, it is appropriate then to turn to consider each of the bases upon which Mr Russell seeks relief with respect to each of the trees.