Awad v Hardie (No 2) [2010] NSWLEC 1258

Land and Environment Court of New South Wales

CITATION : Awad v Hardie (No 2) [2010] NSWLEC 1258

APPLICANT F Awad PARTIES : RESPONDENT L Hardie

FILE NUMBER(S) : 20160 of 2010

CORAM: Moore SC - Galwey AC

KEY ISSUES: TREES (NEIGHBOURS) :- Tree on boundary - where principally located; Proof of damage

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

Awad v Hardie [2010] NSWLEC 1213 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592 Hinde v Anderson and anor [2009] NSWLEC 1148

DATES OF HEARING: 11 June, 23 July and 9 September 2010

EX TEMPORE JUDGMENT DATE : 9 September 2010

APPLICANT Mr S Mir, agent LEGAL REPRESENTATIVES: RESPONDENT Ms D-M Hardie, agent

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC GALWEY AC

9 September 2010

20160 of 2010 Awad v Hardie

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

JUDGMENT 1 This application pursuant to the trees disputes between neighbours act 2006 has an unfortunate history. There have been two previous attendances at the site - on 11 June when the survey information that had been presented by the applicant was shown to be in competently prepared; and, on the second occasion on 23 July, when a further survey that had been prepared by the same surveyor was also shown not to have been prepared in accordance with the directions earlier given by the Court. 2 An interim decision was given on that occasion (see Awad v Hardie [2010] NSWLEC 1213) dealing with the requirements survey information for trees on the boundary in order to establish where the tree is principally located for the purposes of dealing with the jurisdictional question under s 43 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). After the second hearing, the surveyor who had undertaken the earlier two inadequate surveys conducted a further survey that now establishes that 35% of the trunk of the tree at the point where it enters the ground is located on the applicant's property and 65% of the trunk of the tree at the point where it enters the ground is located on the respondent's property. Copies of the three surveys, from earliest to latest, are reproduced below: