Giroud v Sharif

Case •

[2014] NSWLEC 1119

•

23 June 2014

Land and Environment Court


New South Wales

Medium Neutral Citation: Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119
Hearing dates:23 June 2014
Decision date: 23 June 2014
Jurisdiction:Class 2
Before: Moore SC
Galwey AC
Durland AC
Decision:

Application dismissed

Catchwords: TREE DISPUTE: tree on boundary; need for certainty of tree's location; no survey
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Category:Principal judgment
Parties:

L & D Giroud (Applicants)

H & N Nehme (Respondents)
Representation: First Applicant in person
First Respondent in person
Applicants in person
Mr D Simpson, solicitor
Redmond Hale Simpson (Respondents)
File Number(s):20272 of 2014

Judgment

  1. COMMISSIONERS: We have attended the site in Railway Parade, Carlton. We can see from the front of the property that the tree that is subject to application is straddling the fence that is located between the two properties.

  1. There is no survey demonstrating on which side of the fence is the location of the dominant portion of the tree. There is no basis upon which we can conclude that the fence follows a properly surveyed boundary between the two properties.

  1. As a consequence, we do not have any jurisdiction to entertain the application as we cannot be satisfied the tree is principally located on the respondents' property [see s 4(3) of the Trees (Disputes Between Neighbours) Act 2006].

  1. This does not prevent the applicants and the respondents jointly approaching the local council to seek consent pursuant to the Tree Preservation Order for the removal of the tree - it does, however, in the absence of proof as to where the tree is principally located, exclude us from having any jurisdiction to order removal of the tree and override the provisions of the Tree Preservation Order.

  1. As a consequence of the inability to determine the location of the tree, it is necessary that the application be dismissed and we so order.

Tim Moore   David Galwey                    Lisa Durland

Senior Commissioner    Acting Commissioner     Acting Commissioner

Decision last updated: 25 June 2014

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