Riachi v Kerslake [2010] NSWLEC 1153

Land and Environment Court of New South Wales

CITATION : Riachi v Kerslake [2010] NSWLEC 1153

APPLICANTS John & Fiaryal Riachi PARTIES : RESPONDENT Grahame Kerslake

FILE NUMBER(S) : 20283 of 2010

CORAM: Fakes C

TREES (NEIGHBOURS) :- Potential damage to property KEY ISSUES: Property not in existance Boundary tree

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 22/06/2010

DATE OF JUDGMENT: 22 June 2010

EX TEMPORE JUDGMENT DATE : 22 June 2010

APPLICANT John Riachi [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENT Grahame Kerslake [litigant in person]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

22 June 2010

20283 of 2010 Riachi v Kerslake

JUDGMENT 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Hermitage Drive Illawong against the owner of a tree growing substantially on an adjoining property. 2 The applicants are seeking the removal of the tree as they contend that it could potentially cause damage to a newly constructed pool and to filtration equipment and pool motors that are yet to be installed. They state that future root growth will damage the wall of a waterfall to be created at the eastern end of the pool. They also contend that the tree will create difficulties for the erection of a dividing fence and pose issues for security and access to the (yet to be installed) pool equipment. 3 The tree is a Glochidion ferdinandi (Cheese Tree) that has been reduced to a stump of about 2 m high but is still alive. In Robson v Leischke [2008] NSWLEC 152 at para 147, Preston CJ makes it clear that: "The concept of a "tree" is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land." 4 The tree straddles the boundary of the two properties. A partially completed swimming pool has been constructed within about 2 m of the tree. 5 Given the location of the tree on the boundary, the applicant was directed to have the boundary line surveyed and marked appropriately. It is essential to determine the ownership of the tree for the reason given in s 4(3) of the Act. "For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land".