Drolz v Sinclair

[2008] NSWLEC 34

Land and Environment Court

of New South Wales

CITATION:	Drolz v Sinclair [2008] NSWLEC 34
PARTIES:	APPLICANT Louise Drolz RESPONDENTS Sheree & Andrew Sinclair
FILE NUMBER(S):	21080 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Jurisdiction - Trees (Neighbours) - Neighbour Application :- Boundary tree Is tree "principally" situated on adjoining property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006 s 4(3)
CASES CITED:	Brown & anor v Weaver [2007] NSWLEC 738
DATES OF HEARING:	24 January 2008
EX TEMPORE JUDGMENT DATE:	24 January 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS Mr Sinclair, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

24 January 2008

07/20180 Louise Drolz v Sheree & Andrew Sinclair

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

JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by Ms Drolz concerning a conifer (species unknown) and a Banksia (likely Banksia integrifolia) which have both been removed to ground level prior to the hearing. The trees were located on the boundary between Ms Drolz’ property and the property to the west owned by Mr and Ms Sinclair.

2 The removal of the conifer has resolved the issues with respect to that tree.

3 Removal of the Banksia has resolved the issues concerning the existence of this tree – leaving to be determined merely the question of a claim by Ms Drolz for compensation for damage to her stormwater line that she submits has been caused by the Banksia

4 We have been supplied with photographic evidence concerning the damage to the stormwater line and a limited number of photographs of the Banksia prior to removal and the state of the site after the removal of this tree.

5 Ms Drolz’ original application, in the sketch which had accompanied it, showed the two trees as being significantly but not entirely, on the property owned by Mr and Ms Sinclair. The Trees Act requires, in s 4(3), that, for the Court to have jurisdiction, we must be satisfied that the relevant tree is located on the land of the person against whom the application is made or to be situated principally on that land.

6 In this instance, the Banksia has been removed and a significant portion the tree’s stump has also been removed.

7 We have seen one survey peg on the boundary between the Sinclairs’ and Ms Drolz’ properties. We have seen a Colorbond fence to the south which Ms Drolz says has recently been surveyed and has been found to be located properly on the boundary.

8 As the Court is not bound by the strict rules of evidence, we have proceeded to consider the matter on the basis of accepting her evidence about the Colorbond fence and imagining a line between that point and the survey peg as that is the highest that her case could be regarded concerning the location of the boundary.

9 We have a number of photographs which are relevant. The first photographs are a series of three photographs contained in the Sinclairs’ material. These show portions of the trunk of the Banksia from both properties. Second, we have a photograph, numbered 6, in photographs submitted by Ms Drolz and filed with the Court on 14 January. These photographs are appended to these reasons. The removal of part of the stump after the Banksia was cut down means we have no physical evidence to which we can turn.

10 For the purposes of s 4(3) of the Trees Act, we note that the Banksia was a single trunked tree. The approach taken by the Court in Brown & anor v Weaver [2007] NSWLEC 738 was to consider that boundary tree, on the facts of that case by considering the location of 50% of the trunk measured at ground level compared to the property boundary. In the absence of any reason to or any significant evidence to assist us to, we adopt that approach in this case.

11 The burden of proof lies with the applicant to satisfy us, on the balance of probabilities, that the Banksia was located principally on the Sinclairs’ property. We therefore need to be satisfied that, on the balance of probalities, at least 50% of the Banksia, at the base of its trunk, was located on the Sinclairs’ property.

12 We are unable to form that conclusion, on the basis of the photographs provided. As a consequence, we cannot be satisfied Ms Drolz’ compensation claim is within the jurisdiction of the Court. We are therefore obliged to dismiss the application.

Tim Moore

Commissioner of the Court

Judy Fakes

Acting Commissioner of the Court