Wicks v Fenton [2014] NSWLEC 1129

Land and Environment Court New South Wales

Medium Neutral Citation: Wicks v Fenton [2014] NSWLEC 1129 Hearing dates: 23 June 2014 Decision date: 23 June 2014 Jurisdiction: Class 2 Before: Moore SC Galwey AC Durland AC Decision: See (36) Catchwords: TREES: jurisdictional tests; discretion; dividing fence Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 Dividing Fences Act 1991 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Briginshaw v Briginshaw (1938) 60 CLR 336 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Pamela Dianne Wicks (Applicant)

Warren and Vicky Fenton (Respondents) Representation: Applicant in person

Respondents in person File Number(s): 20212 of 2014

Judgment

Introduction 1COMMISSIONERS: These proceedings concern an application made by a resident of Como, concerning trees located on an adjacent property. There are five trees that are the subject of the application; they are located, with one exception, in the general vicinity of the fence line that divides the two properties. For the purposes of this decision, we need to consider whether or not, with respect to each tree, we have jurisdiction to deal with the application and, if we do so, what orders, if any, we should make with respect to each of the trees. 2All the applications are made under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in that they arise with respect to the matters contained in s 10 of the Act, that is, that they have caused, are causing or are likely in the near future to cause damage to the applicant's property or they are a risk of injury to any person. 3For the purposes of this decision, it is convenient to work from the rear boundary toward the front and deal with the various elements that arise about each of the trees. Before doing so, we also note that there is also an application made as part of these proceedings pursuant to s 13A of the Dividing Fences Act 1991 (the Dividing Fences Act), a provision that engages us with the power to make orders with respect to the remainder of the dividing fences between the properties - as part of the dividing fence is said to have been damaged in the past by one of the trees. We will deal with that application later in this decision.