Ermis v Boutros

[2025] NSWLEC 5

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ermis v Boutros [2025] NSWLEC 5

Hearing dates:

04 February 2025

Date of orders:

04 February 2025

Decision date:

04 February 2025

Jurisdiction:

Class 2

Before:

Pain J

Decision:

See below in [23].

Catchwords:

APPEAL – s 56A appeal of acting commissioner decision refusing part of Trees (Disputes Between Neighbours) Act 2006 application for pruning of various trees

Legislation Cited:

Land and Environment Court Act 1979, s 56A

Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 10, 12, 14B, 14E, 14F

Cases Cited:

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Ermis v Boutros [2024] NSWLEC 1521

ISPT Pty Ltd v Valuer General; (2009) 165 LGERA 25; [2009] NSWCA 31

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Category:

Principal judgment

Parties:

Memduh Volkan Ermis (First Appellant)
Ayzin Ermis (Second Appellant)
Simon Boutros (First Respondent)
Cecilia Boutros (Second Respondent)

Representation:

M V Ermis (Self-represented) (First Appellant)
A Ermis (Self-represented) (Second Appellant)
S Boutros (Self-represented) (First Respondent)
C Boutros (Self-represented) (Second Respondent)

File Number(s):

2024/00354685

Publication restriction:

No

EX TEMPORE JUDGMENT

1. Mr and Mrs Ermis (the Appellants) have commenced a s 56A appeal under the Land and Environment Court Act 1979 (LEC Act) alleging numerous errors by Acting Commissioner (AC) Galwey in Ermis v Boutros [2024] NSWLEC 1521 in relation to their application under Pts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). They sought various orders in relation to pruning several trees on their neighbours’ land belonging to Mr and Mrs Boutros (the Respondents). The AC conducted a hearing including a site inspection in the presence of the parties and observed the trees in issue. Both parties represented themselves before the AC and today at the appeal hearing.

2. Before the AC Mr and Mrs Ermis sought orders in relation to 14 trees, being three in the front and 11 at the rear of the Boutros’ property. The front trees include two Bangalow palms. The rear trees include at T5-T13 as numbered in the evidence several cypress pines. The Part 2A application concerning obstruction of sunlight and views was dismissed by the AC. The Part 2 application concerning damage and injury was granted in part with orders made requiring pruning of trees T5-T13 inter alia. No orders were made requiring the pruning of the Bangalow palms.

3. An appeal under s 56A must be made in relation to a question of law generally to be identified in the reasoning (or possibly absence of reasoning) of the AC. The merit assessment of a commissioner or acting commissioner cannot be the subject of an appeal under s 56A. The appellants were advised at the outset of the appeal hearing that the relief sought in the appeal of orders for the pruning of a number of trees were unlikely to be made given that the nature of the appeal does not include consideration of…