Harrison & anor v Neuer & anor [2015] NSWLEC 1098

Land and Environment Court New South Wales

Medium Neutral Citation: Harrison & anor v Neuer & anor [2015] NSWLEC 1098 Hearing dates: 15 April 2015 Date of orders: 15 April 2015 Decision date: 15 April 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury; threshold issue – tree not proven to be wholly or principally on adjoining land; actions of the parties, including the court, in attempting to clarify location. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Conveyancing Act 1919 Category: Principal judgment Parties: Robert and Jennifer Harrison (Applicants) Mark and Robyn Neuer (Respondents) Representation: Counsel: Applicants: Mr R Harrison (Litigant in person) Respondents: Mr J Kay (Solicitor)

Solicitors: Respondents: Falvey Kay Lawyers File Number(s): 20910 of 2014

Judgment 1. COMMISSIONER: On 29 October 2014 the applicants, who reside in Port Macquarie, lodged a Tree Dispute Application with the Local Court in that city. The application was then forwarded to the Land and Environment Court. The matter was listed for a directions hearing by telephone on 15 December 2014. 2. The application is made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2007 (the Trees Act). The orders sought by the applicants are as follows [as written]: 1. That the Respondents take responsibility for the Tree that is partially located on their property as is shown by the Surveyors plan & Report. (dated 20-10-09 and marked No.20.) and that they refrain from disposing of any branches or dead wood that should fall on their side onto our side. 2. That they accept responsibility and pay for any costs incurred in the maintenance and care including any pruning or lopping, removal of dead wood, spraying or treatment that may be required for the life of the said Tree and the Removal of that tree, stump and root system after it is dead or cut down. To prevent damage – further damage to property from falling branches or the tree. 3. That they have the Tree cut down and completely removed as it appears that it is infested with white ants and to clear the boundary and allow the boundary fence to be replaced that was existing prior to their subdivision taking place with a new fence to be erected as has been ordered by (NCAT.) the fencing contractors have refused to carry out works until boundary has been cleared. This Tree was earmarked to be removed on the council approved plan (REGF 4963.DA NO: 507/2002 for the subdivision of their land, apparently they have neglected to do so. This plan has more lately been acquired, (copies will be available as soon as printing is complete) and this is to prevent injury to any person from falling branches or tree. (This is a 30 mtr tree located 10 mtrs from a dwelling where on a windy night the kids attempt to sleep under their beds in fear of the Tree falling.) 4. That all and any costs in the carrying out of these works and the bringing of this action is awarded against the Respondents. 5. That the court awards the payment of compensation for previous damage, and costs of previous lopping as per our list which shows costs @ 50% of the total. 1. The tree the subject of the application is a large, mature Eucalyptus microcorys (Tallowwood). The tree is growing in an earth embankment created during establishment of the subdivision of land to the immediate south of the applicants' property. 2. The Court's powers to make orders are provided by s 9 of the Trees Act. Section 9(1) states: (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned [emphasis added]. 1. The 'tree the subject of the application' must be a tree to which the Trees Act applies. Section 7 of the Trees Act states: 7 Application to Court by affected land owner 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 [emphasis added]. 1. Section 4 considers the application of the Act to trees on certain land. Section 4(1) specifies the land zones to which the Act applies; s 4(2) states that the Act does not apply to trees on land owned or managed by a council or prescribed by the regulation. Section 4(3) relevantly states: (3) For the purposes of this Act, a tree is situated on land is the tree is situated wholly or principally on the land. 1. Put simply, the Court has no power to consider any tree that does not comply with the locational requirements prescribed in sections 7 and 4. 2. Therefore a key jurisdictional test is whether the tree the subject of this application is principally located on the respondents' land. In this regard, it is worthwhile providing a chronology of the relevant communications between the Court and the parties from the time of filing to the date of the on-site hearing.