Liu v Morris [2012] NSWLEC 1345

Land and Environment Court New South Wales

Medium Neutral Citation: Liu v Morris [2012] NSWLEC 1345 Hearing dates: 28 November 2012 Decision date: 28 November 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); only an owner of the land can make an application; a right of carriageway is not ownership of land; application dismissed. Legislation Cited: Conveyancing Act 1919 Real Property Act 1900 Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Chun Fang Liu (Applicant)

Philip Morris (First Respondent) Anna-Marie Morris (Second Respondent) Representation: Chun Fang Liu (Applicant) [Litigant in person]

Philip Morris and Anna-Marie Morris (Respondents) [Litigants in person] File Number(s): 20901 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: The layout of residential lots in a cul de sac in Illawong has resulted in the need for a right of carriageway across some properties to provide access to others. 2Mr and Mrs Morris own land at number 25, with frontage to the street. A narrow strip of their land along their eastern side boundary has a right of carriageway over it. Similarly, their neighbour's land at number 19, also with street frontage, has a right of carriageway over a narrow strip of land along its common boundary with the Morris' land. These two rights of carriageway combine to create a driveway that provides vehicular and pedestrian access to the two properties behind and to the north: properties number 21 and 23. Both properties number 19 and 25 have fences within them along the edges of their rights of carriageway, so that each side of the driveway to numbers 21 and 23 is fenced along its length. Although this creates the appearance that the driveway is separate land between numbers 19 and 25, the owners of these two properties each own half of the driveway, split along its length. 3A large gum tree grows on the Morris' land, just in from the fence along the edge of the driveway. 4For some time, Ms Liu has been concerned about a section of the driveway near the tree, where she says roots from the adjacent tree have lifted the driveway, making it unsafe and not fit for use. Mr and Mrs Morris do not dispute that the tree has damaged the driveway. Ms Liu is also concerned about root damage to the sewer pipe, stormwater pipe and electricity cables that pass along the edge of the driveway and service her dwelling. Ms Liu has applied to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the "Trees Act") seeking orders for the removal of the gum tree and several other trees, as well as compensation for the cost of works to repair damage to the driveway and services. 5Mr and Mrs Morris, the respondents to the application, submitted a survey plan clearly showing that the area of damaged property (driveway, sewer, electricity assets) is entirely within the part of their property that is covered by the right of carriageway.