Dive v Lin and Liu

[2017] NSWLEC 153

Land and Environment Court

New South Wales

Case Name:	Dive v Lin and Liu
Medium Neutral Citation:	[2017] NSWLEC 153
Hearing Date(s):	16 November 2017
Date of Orders:	16 November 2017
Decision Date:	16 November 2017
Jurisdiction:	Class 2
Before:	Preston CJ
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – appeal against Commissioner’s decision – application for removal of tree – jurisdictional requirement that tree be situated on “adjoining land” – tree situated on land two properties from applicant’s land – Commissioner determined tree not on adjoining land – whether Commissioner erred in interpretation and application of “adjoining land” – no error on question of law
Legislation Cited:	Civil Procedure Act 2005 s 98(1) Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 s 56A(1) Land and Environment Court Rules 2007 r 3.7 State Environmental Planning Policy (Seniors Living) 2004 State Environmental Planning Policy No 5 – Housing for the Aged or Disabled Persons Trees (Disputes Between Neighbours) Act 2006 ss 4(3), 7, 9(1), 10(2), 14B and 14D(1) and 14E(2), Part 2, Part 2A Trees (Disputes Between Neighbours) Amendment Act 2010 Sch 1 Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited:	ACN 115 840 509 Pty Ltd v Kiama Municipal Council (2006) 145 LGERA 147; [2006] NSWLEC 151 Cachia v Hanes (1994) 179 CLR 403 Cachia v The Hills Shire Council (2010) 210 LGERA 191; [2010] NSWLEC 136 Cave v Horsell [1912] 3 KB 533 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Royal Oak Pastoral Co v Mulwaree Shire Council [1997] NSWLEC 5
Category:	Principal judgment
Parties:	Thomas Dive (Applicant) Ai Zhong Lin (First Respondent) Dong Mei Liu (Second Respondent)
Representation:	Counsel: Mr T To (Applicant)   Solicitors: Dive Lawyers and Notaries (Applicant)   Ai Zong Lin appeared in person
File Number(s):	2017/230671
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Land and Environment Court of NSW
Jurisdiction:	Class 2
Citation:	[2017] NSWLEC 1348
Date of Decision:	3 July 2017
Before:	Galwey AC
File Number(s):	2017/102878

JUDGMENT

A Commissioner dismisses an application to remove a tree

1. Mr Dive owns an inner city residential property at 17 Caroline Street, Redfern. He is concerned about a large Sydney Blue Gum tree growing two properties away at 21 Caroline Street. Mr Lin and Ms Liu, the respondents, own 21 Caroline Street. The Sydney Blue Gum tree originally had a height of around 32 metres and a canopy spread of 10 to 15 metres depending on the direction. Its branches extended about 12 metres to the east over both 19 and 17 Caroline Street. The tree had previously dropped branches onto Mr Dive’s property and had caused damage to his dwelling.

2. Mr Dive applied under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) for the tree to be removed. Acting Commissioner Galwey heard the application on 3 July…