Land and Environment Court New South Wales Medium Neutral Citation: Frith & anor v Devile & anor [2014] NSWLEC 1198 Hearing dates: 25 September 2014 Decision date: 25 September 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; injury; compensation; tree not substantially on respondents' land Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Awad v Hardie (No 2) [2010] NSWLEC 1258 Vella v The Owners of Strata Plan 8670 [2007] NSWLEC 365 Category: Principal judgment Parties: Mr D Frith & Ms R Frith (Applicants) Mr S Devile and Ms P Devile (Respondents) Representation: Applicants: D & R Frith (Litigants in person) Respondents: P Devile (Litigant in person/ agent) File Number(s): 20574 of 2014 Judgment 1COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of what they contend are hazardous trees growing on an adjoining property in Winmalee. They are also seeking orders for compensation of a sum of $3388.00 for the cost of replacing roof sarking they contend was damaged, on two occasions, by branches falling from a large Ironbark. 2Section 7, Part 2 of the Act states: An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 3The application identifies four trees - one Ironbark and three Stringybarks. The claim form concentrates on alleged damage to the roof arising from branches from the Ironbark as well as one occasion where a branch from the Ironbark fell, caused damage to the dividing fence, and according to the applicants, just missed people standing on nearby scaffolding. The application repeatedly uses the word 'tree' which is understood to be the large Ironbark. The Stringybark trees are semi-mature specimens growing beneath and beside the Ironbark. 4The respondents' property is a battleaxe block accessed by a driveway that bounds the western side of the applicants' property. This driveway provides vehicular access to three properties. The trees are located on an embankment on the western side of the respondents' driveway. A portion of the Ironbark's canopy overhangs the applicants' property. 5Prior to the Directions hearing, the respondents advised the Land and Environment Court that the Ironbark is located on the boundary between the respondents' property and the adjoining property to the west (that is, not the applicants' property). 6Section 4(3) of the Trees Act states: For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land. 7Where there is uncertainty as to whether a tree is "wholly or principally" on adjoining land, the Court may direct that a survey be undertaken to precisely determine the location of a tree. The Court has held that the location must be determined at ground level even though part or most of the trunk and canopy may overhang an applicant's property (see Vella v The Owners of Strata Plan 8670 [2007] NSWLEC 365 and Awad v Hardie (No 2) [2010] NSWLEC 1258). 8As a consequence of this advice, the standard Trees Act directions were made with Direction 6 amended to require the applicants to provide a survey report. 9The survey dated 22 August 2014, prepared by G.B. Meyer & Assoc. Surveyors depicts the trunk as circular and straddling the boundary between the respondents' property and their neighbour to the west. The circle shows more than 50% of the surveyed part of the Ironbark to be on the property to the west of the respondents' land. A note on the survey plan states: 'Main branch overhangs Lot 1 DP1051846 [the applicants' property] approximately 4.5 from ground level". 10While the trunk at ground level is not a perfect circle, on the day of the hearing it was clear from survey marks made on the tree the majority of the tree at ground level is not on the respondents' property. The applicants accept this is the case. 11Therefore in regards to Tree 1, the Ironbark, the Court has no jurisdiction to consider this tree. Therefore the application to remove it and for the payment of compensation arising from damage said to have been caused by it, is dismissed. 12In regards to the remaining trees, while they are on the respondents' property, apart from being located on the site plan, no part of the application claim form discusses any concerns arising from these trees. The only mention of two of them is in a notated quotation for the removal of the Ironbark from Barker Bros. attached to the claim form. The author of that quotation states: "two smaller gums need to be removed to gain access for the dismantling of the large gum". 13On site, the applicants were concerned that these smaller trees were rubbing on the large Ironbark and that this may cause extra damage to the Ironbark. They stated that these Stringybarks had caused no damage or injury. None of these trees overhang the applicants' property. 14Section 10(2) of the Act requires that the Court must not make an order under Part 2 unless it is satisfied that any tree about which the application is made and to which the Act applies, has caused, is causing, or could in the near future cause, damage to an applicant's property or could cause injury to any person. 15With the expertise I bring to the Court I saw nothing that would lead me to conclude that any of the three Stringybarks are likely in the near future to cause damage to the applicants' property or cause injury to any person. The comment by the author of the quote reflects an expedient and less than skilful approach to the task. 16Therefore as s 10(2) is not met for any of these trees, the Court's jurisdiction to make orders is not engaged and the application with respect to the Stringybarks is dismissed. 17Therefore, the Orders of the Court are: (1)The application is dismissed. __________________________ Judy Fakes 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. Decision last updated: 26 September 2014