Dive v Lin & anor

[2017] NSWLEC 1348

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dive v Lin & anor [2017] NSWLEC 1348
Hearing dates:	3 July 2017
Date of orders:	03 July 2017
Decision date:	03 July 2017
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); a tree is situated on land if it is principally on that land; tree must be situated on land adjoining the applicant’s land.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Thomas Dive (Applicant) Ai Zhong Lin (First Respondent) Dong Mei Liu (Second Respondent)
Representation:	Thomas Dive, Litigant in Person (Applicant) Ai Zhong Lin and Dong Mei Liu, Litigants in Person (Respondents)
File Number(s):	102878 of 2017

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. A tall Sydney Blue Gum straddles the boundary between two properties in inner Sydney’s Redfern. A large decayed area in its stem is evident from a simple visual inspection. At ground level a significant portion of the tree’s stem is on the property of Mr Lin and Ms Liu (‘the respondents’).

2. In 2008 the City of Sydney (‘Council’) gave consent to the previous owners of the respondents’ property for the tree to be removed. It is not clear if those owners failed to gain agreement for tree removal from their neighbour to the east, who partly owns the tree, but the tree was not removed.

3. A letter from the City of Sydney in 2015 shows that a previous owner of the respondents’’ property had submitted an arborist report in the hope of removing the tree without requiring Council’s consent, but the report did not meet Council’s requirements for exemption, so Council informed the applicant that a tree removal application would need to be lodged.

4. Mr Lin and Ms Liu have owned their property for less than one year. They, too, have applied to Council to remove the tree. They were informed that their application must be supported by a contemporary arborist report and they must gain their neighbour’s consent.

5. Mr Dive (‘the applicant’) resides at the property he owns, two properties to the east of the respondents. He is concerned that the tree’s condition will result in it failing, in which case it may damage his or other properties, or cause injury to people in the vicinity.

6. He has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the respondents to remove the tree. He seeks an order for the respondents to apply to Council for permission to remove the tree. He also seeks an order for the respondents to pay the costs of his application.

The application does not fall with the jurisdiction of the Trees Act

7. Part 2 of the Trees Act enables property owners to apply for orders concerning trees that cause or are likely to cause damage or injury. Section 7 of this Part establishes, and at the same time limits, the ability of a property owner to make an application:

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.

8. According to the final phrase of s 7, then, the tree must be situated on adjoining land for a property owner to apply to the Court for orders concerning the tree.

9. At s 4(3) of the Act, the meaning of this phrase within the Act is explained:

4(3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.

10. The Macmillan dictionary defines principally as mainly. Mainly is used for talking about the largest or most important part of something.

11. The respondents engaged a surveyor to locate the tree stem relative to the common boundary which it straddles. Adam Long, of GeoCapture Surveying, surveyed the stem on 2 March 2017 and found the stem to be roughly circular and to extend 0.95 metres into the respondents’ property and 0.65 metres into their neighbour’s property. (At approximately 2 metres height the measurements were 0.7 metres and 0.2 metres respectively.) The tree is not wholly situated on land adjoining Mr Dive’s property, nor is it principally situated on adjoining land. It is partly on his neighbour’s land, but is principally situated on Mr Lin’s and Ms Liu’s land, two properties to his west.

12. Mr Dive referred the Court to two previous decisions, one of this Court (P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128) and one of the Court of Appeal (Hornsby Shire Council v Malcolm (1986) 60 LGRA 429). These decisions, Mr Dive contends, show that the Court’s position allows consideration of land not sharing a common boundary to be ‘adjoining land’.

13. In P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, the applicant’s and respondent’s properties were separated by a street. Moore C and Fakes AC found:

4 A conventional understanding of the word adjoining would not lead to the conclusion that this provision was satisfied in this instance.

5 However, the Court of Appeal, in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, held, per Kirby P at p 433, that the word adjoins is to be given a wider meaning and the use of the word did not require, in a contemporary context, geographic contiguity.

6 Although Hornsby v Malcolm so held, specifically for the purposes of determining a zoning issue, that a property was to be regarded as adjoining the other property which was across the road, we are satisfied that the principle there set out by the Court of Appeal should be adopted as applicable to similar wording in this provision of the Act.

14. Furthermore, in Robson v Leischke [2008] NSWLEC 152 at 157 Preston CJ considered this same issue (with my emphasis):

157 Apart from determining on which land the tree is situated, it is also a requirement under s 7 of the Trees (Disputes Between Neighbours) Act 2006 that the tree be situated on “adjoining land”. The concept of “adjoining land” evidently includes properties that abut each other, but might also include properties that are separated by other land, such as a public road or drainage easement, provided there is a relevant connection in the sense that the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property: see P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 (15 March 2007) (Moore C, Fakes AC) at [2]-[7].

15. His Honour’s wording appears to make it clear that properties separated by a relatively narrow section of public land, such as a road or laneway, or an easement, might be considered “adjoining”. However this is not the case in the matter before me, where the applicant’s land is separated from the respondents’ by another residential allotment.

Conclusion

16. The tree is principally on the respondents’ land, but this is not land adjoining Mr Dive’s property, so he cannot apply for orders to interfere with the tree.

17. It follows that, although the tree may be hazardous, the Court cannot make orders for its removal and the parties must find another way to address this issue.

Orders

18. The orders of the Court are:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 03 July 2017