Fraus v Xu [2018] NSWLEC 1176

Land and Environment Court New South Wales

Medium Neutral Citation: Fraus v Xu [2018] NSWLEC 1176 Hearing dates: 5 April 2018 Date of orders: 05 April 2018 Decision date: 05 April 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: The appeal is upheld in part. See orders at paragraph [23] Catchwords: TREES [DISPUTES BETWEEN NEIGHBOURS] : risk of failure; damage; injury. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ms Ruiran Fraus (Applicant) Mr Shangjie Xu (Respondent) Representation: Litigant in person (Applicant) Litigant in person (Respondent) File Number(s): 2018/12548 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application, pursuant to s 7 of the Trees (Disputes between Neighbours) Act 2007 by Ms Fraus of 116 Campbell Drive, Wahroonga concerning three trees, a Cypress tree (Cupressus sp) and two Gum trees (Eucalyptus piperita) located on the next door property at 118 Campbell Drive, Wahroonga. The properties share a common driveway entrance covering an area of approximately thirty square metres. Beyond this common area, Ms Fraus' driveway curves to the north-north east and terminates in a concrete pad to the west of their house entrance, while Mr Xu's driveway extends east-south east up a fairly steep slope for perhaps thirty metres. Mr Xu's house sits at the end of this driveway above a set of stairs higher up the slope. 2. The east-west boundary between the properties terminates on the eastern side of this common driveway entrance and the Cypress tree is located approximately one metre south-south east of this property corner. Gum tree 1, is located approximately five metres east of the common driveway area in a raised garden bed, on the southern side of Mr Xu's driveway. Gum tree 2 is located in the same raised garden bed, also on the southern side of Mr Xu's driveway, approximately three metres further east than the first.