Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119

Land and Environment Court New South Wales

Medium Neutral Citation: Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119 Hearing dates: 23 June 2014 Decision date: 23 June 2014 Jurisdiction: Class 2 Before: Moore SC Galwey AC Durland AC Decision: Application dismissed Catchwords: TREE DISPUTE: tree on boundary; need for certainty of tree's location; no survey Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: L & D Giroud (Applicants)

H & N Nehme (Respondents) Representation: First Applicant in person First Respondent in person Applicants in person Mr D Simpson, solicitor Redmond Hale Simpson (Respondents) File Number(s): 20272 of 2014

Judgment 1COMMISSIONERS: We have attended the site in Railway Parade, Carlton. We can see from the front of the property that the tree that is subject to application is straddling the fence that is located between the two properties. 2There is no survey demonstrating on which side of the fence is the location of the dominant portion of the tree. There is no basis upon which we can conclude that the fence follows a properly surveyed boundary between the two properties. 3As a consequence, we do not have any jurisdiction to entertain the application as we cannot be satisfied the tree is principally located on the respondents' property [see s 4(3) of the Trees (Disputes Between Neighbours) Act 2006]. 4This does not prevent the applicants and the respondents jointly approaching the local council to seek consent pursuant to the Tree Preservation Order for the removal of the tree - it does, however, in the absence of proof as to where the tree is principally located, exclude us from having any jurisdiction to order removal of the tree and override the provisions of the Tree Preservation Order. 5As a consequence of the inability to determine the location of the tree, it is necessary that the application be dismissed and we so order. Tim Moore David Galwey Lisa Durland Senior Commissioner Acting Commissioner Acting Commissioner 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. Decision last updated: 25 June 2014