Henry v Calleja
[2019] NSWLEC 1216
•15 May 2019
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Henry v Calleja [2019] NSWLEC 1216 Hearing dates: 15 May 2019 Date of orders: 15 May 2019 Decision date: 15 May 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – fence – compensation – applicant seeks rent for land – no damage found – application dismissed Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Category: Principal judgment Parties: Donald Ernest Henry (Applicant)
Violet Calleja (Respondent)Representation: D Henry, litigant in person (Applicant)
V Calleja, litigant in person (Respondent)
File Number(s): 2019/37134 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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A post-and-wire fence runs along the common boundary between the Aldavilla properties of Donald Henry (‘the applicant’) and Violet Calleja (‘the respondent’). At the rear boundary is a white survey peg, which Mr Henry says marks the end of the common boundary and the corner of each property.
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Near the survey peg is an Ironbark tree (‘the tree’), some 20 metres tall. The last section of wire fence appears to be diverted slightly to go past this tree, with the corner fence post offset from the survey peg. According to the location of the survey peg, the tree straddles the boundary with about 90% of its stem at ground level on Ms Calleja’s property and 10% on Mr Henry’s.
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The fence has clearly been here for some time. Wooden posts along the rear boundaries are weathered and leaning. The corner post’s lean appears due to its age, like the other posts, rather than any pressure from the adjacent Ironbark.
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Mr Henry has applied to the Court, pursuant so s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for:
Removal of the tree;
The entire length of the common boundary fence to be removed and replaced 6 inches to the east; and
Ms Calleja to pay rent for a 6-inch wide strip of his land which, according to Mr Henry, has been on her side of the fence for many years.
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Mr Henry believes that the wire fence, for its entire length of ~120 metres, is on his land, 6 inches west of the common boundary. He said it was put there because of the tree. He said the fence must be on the boundary if he is to realise the full resale potential of his property.
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Explanations from both Mr Henry and Ms Calleja revealed that the fence was constructed before Ms Calleja lived here, by the previous owners of Ms Calleja’s property. Mr Henry said they erected two thirds of the fence and he did the other third. Ms Calleja had no part in it. Mr Henry said he was aware the fence was not on the boundary.
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Given these circumstances, it is difficult to understand Mr Henry’s reasoning for expecting Ms Calleja to pay him rent and to pay for the fence’s relocation.
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Despite Mr Henry’s assertions, there is no evidence that the fence is anywhere but on the boundary for most of its length. A survey report says only that the fence is “on the boundary and up to 0.2 metres off the boundary”, but does not show where it veers from the boundary. Mysteriously, the survey plan does not show both the boundary and the fence for their entire length, but only for one small section toward the northern end where the tree is.
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Regardless of the above, I explained to Mr Henry that the Court’s jurisdiction is clearly restricted within the Trees Act. The Court can only make an order if it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to injure a person (s 10(2)). Mr Henry asserted that the tree is pushing against the fence wires. Because Mr Henry had not appeared onsite this morning, the proceedings were adjourned to be heard via telephone this afternoon. I viewed the situation onsite this morning and took several photographs. The photo below shows the base of the tree, the survey peg, the corner fence post and the fence wire along the common boundary fence (toward the bottom of the photo).
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The photo shows the weathered condition of the fence. It shows that the fence wire is clear of the tree’s stem. The tree has not, is not, and is not about to, damage the fence.
Orders
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As a result of the foregoing, the orders of the Court are:
The application is refused.
……………………………….
D Galwey
Acting Commissioner of the Court
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Amendments
27 May 2019 - Orientation of picture at [9] corrected
Decision last updated: 27 May 2019
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