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…