Land and Environment Court of New South Wales CITATION : Benedetti v Seldon & anor [2009] NSWLEC 1019 APPLICANT M Benedetti PARTIES : RESPONDENTS P & T Seldon FILE NUMBER(S) : 21088 of 2008 CORAM: Moore C - Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Trees on boundary LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Brown & anor v Weaver [2007] NSWLEC 738 DATES OF HEARING: 21 January 2009 EX TEMPORE JUDGMENT DATE : 21 January 2009 APPLICANT Ms W Cannon, agent LEGAL REPRESENTATIVES: RESPONDENTS In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 21 January 2009 21088 of 2008 M Benedetti v P & T Seldon JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: In this matter, when we arrived at the site, it appeared to us that each of the two trees which are subject of the application were located in the vicinity of the boundary between the applicant's property and the respondents' property. 2 Near these two trees, there are two elements of boundary fencing. There is a very dilapidated (and almost entirely fallen over) short section of single railing fixed to posts closer to the street and in the immediate vicinity of the smaller of the two trees. Because of its state, this fence provided us with no assistance in considering where might be the boundary between the two properties. 3 There is, however, from the front setback of the applicant's building through to or substantially toward the rear of her property, a Colorbond fence which we have been advised by the respondents was erected some 18 months or so ago and was erected, to the best of their knowledge and belief, on the common boundary between the two properties. We explained, to the respondents and to the representative of the applicant, that we proposed to have regard to a notionally extended line of that fence – assuming that a minor bowing at approximately one third of its length had been straightened – to endeavour to determine whether or not we could be satisfied that either or both of the trees was principally located on the respondents' property (as required by s 4(3) of the Act). 4 Having considered the smaller of the two trees (that is the tree further into the property to the east of the front boundary), we are satisfied that all or nearly all of that tree is probably located on the applicant's property. We do not, however, need to determine this as a position on the jurisdictional issue. We do, however, need to make a jurisdictional determination and that which we make is that we cannot be satisfied that that tree is located wholly or principally on the respondents' property. 5 With respect to the more substantial tree closer to the front property boundary, we have endeavoured (and have explained this to the applicant's representative and to the respondents) to assess where a notional line on the continuation of the Colorbond fence would cut through that tree and to assess what proportion of the base of that tree was on the each of the properties. This approach, for a single trunked tree, is consistent with that taken in Brown & anor v Weaver [2007] NSWLEC 738. 6 With the assistance of a tape measure, as both a plum bob and a measuring device, we have measured the diameter of the base of the tree as being approximately 128 inches in circumference. Doing is best we can with the limited information available to us; we have similarly undertaken an extrapolation of the line of the fence to this tree. 7 We are satisfied that approximately 74 inches of the circumference of the tree, at the base of the tree, appears to be located on the applicant's property with the balance (of a significantly less portion of the base of the trunk) being located on the respondents' property. 8 Again we do not express the conclusion that we have reached a determination that the tree is located principally on the applicant's property. However, the conclusion that we have necessarily reached on the preliminary jurisdictional question with respect to this tree is that we also cannot be satisfied that it is located principally on the respondents' property. 9 As a consequence of that which has been discussed above, the applicant has not been able to establish that the Court has jurisdiction to deal with the application with respect to either of the trees. As a result, we are obliged to dismiss the application and we so order. Tim Moore Peter Thyer Commissioner of the Court Acting 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.