Land and Environment Court of New South Wales CITATION : Agius v Forrester [2008] NSWLEC 256 APPLICANT: Maurice Agius PARTIES : RESPONDENT: Esabel Forrester FILE NUMBER(S) : 20822 of 2007 CORAM: Biscoe J KEY ISSUES: Trees :- application for extension of time in which to appeal from Commissioner's decision to dismiss an application for pruning or removal of a tree - tree branch alleged to have fallen after Commissioner's decision - appeal futile because no error of law by Commissioner therefore application for extension of time refused - appropriate procedure is to file another tree application which raises the new circumstance. Land and Environment Court Act 1979 (NSW), s 56A LEGISLATION CITED: Trees (Disputes between Neighbours) Act 2006 (NSW), s 7 Uniform Civil Procedure Rules 2005 (NSW), r 50.12 CASES CITED: Agius v Forrester [2007] NSWLEC 857 DATES OF HEARING: 21/08/08 EX TEMPORE JUDGMENT DATE : 21 August 2008 APPLICANT: Mr M. Agius (in person) SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: no appearance SOLICITORS: N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 21 August 2008 20822 of 2007 MAURICE AGIUS v ESABEL FORRESTER EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application by Mr Maurice Agius for an extension of time to file a notice of appeal under s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner of this Court: Agius v Forrester [2007] NSWLEC 857. An appeal from a Commissioner is limited to questions of law. The Commissioner's decision was handed down on 5 December 2007. An appeal must be filed within 28 days: r 50.12 Uniform Civil Procedure Rules 2005. No appeal was filed within that time. 2 Mr Agius resides at 51 Hunter Street, Riverstone. The Commissioner determined Mr Agius' application pursuant to s 7 of the Trees (Disputes between Neighbours) Act 2006. The application sought an order for pruning or removal of a lemon scented gum tree located on the adjacent property at 42 Railway Terrace, owned by Mrs Forrester, and monetary compensation. The tree is about twenty metres high. 3 In his reasons for judgment, the Commissioner recounted that in the past three years, two branches had fallen from the tree onto Mr Agius' property or onto a strip separating the two properties. The branch fall which gave rise to the application before the Commissioner occurred on 5 July 2007. It damaged a skylight on the rear garage and storeroom on Mr Agius' property. The Commissioner was not satisfied that there was, on the balance of probabilities, any likelihood in the near future of any further failure and thus risk to Mr Agius' property from the tree. After addressing other matters, the Commissioner dismissed the application. 4 Mr Agius now says that on 11 February 2008 another branch fell off the same tree on a calm day, that it missed his place by two metres and that this branch was bigger than those that had fallen on previous occasions. 5 Assuming that is correct, it does not raise any question of law in relation to the Commissioner's decision. Rather, Mr Agius has identified new circumstances which, if supported by evidence, could justify a further tree application. Since an appeal is limited to questions of law, it would be futile to extend the time for filing a notice of appeal. Accordingly, I dismiss the application for extension of time. 6 The appropriate procedure, if Mr Agius wishes to pursue it, is to file another tree application to raise the circumstance that a branch has fallen since the Commissioner delivered judgment. Mr Agius has informed me that in or about May this year he did attempt to file another tree application that raised that circumstance but was informed by someone in the registry that he should instead seek to appeal under s 56A. If that happened, then in my view he was misinformed. Mr Agius has shown me the tree application which he said that he attempted to file on that occasion. He may now wish to take that tree application, or such other tree application as he may be minded to file, to the registry and file it. 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.