Hung v Bird

[2008] NSWLEC 1246

Land and Environment Court

of New South Wales

CITATION:	Hung v Bird [2008] NSWLEC 1246
PARTIES:	APPLICANT Janet Hung RESPONDENTS Maurice & Helen Bird
FILE NUMBER(S):	20452 of 2008
CORAM:	Moore C
KEY ISSUES:	Jurisdiction - Trees (Neighbours) :- No genuine dispute between the parties No jurisdiction under the Trees Act
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke [2008] NSWLEC 152
DATES OF HEARING:	20 June 2008
EX TEMPORE JUDGMENT DATE:	20 June 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPOPNDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

2 June 2008

08/20452 Janet Hung v Maurice & Helen Bird

JUDGMENT

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

1 COMMISSIONER : In Mrs Hung's application, which is that the Court order Mr and Mrs Bird to remove a tree, she makes mention of the fact that Mr and Mrs Bird applied in late 2007 for permission from Baulkham Hills Council to remove the tree which is the subject of Mrs Hung's application. The Birds' application, made for permission pursuant to the council's tree preservation order, was refused.

2 At the commencement of the preliminary hearing, I asked Mr and Mrs Bird whether they had, at the time of their 2007 application, genuinely wanted to remove the tree and whether they still wished to do so. They indicated that they had wished to remove the tree and still did wish to remove the tree.

3 As consequence, I am satisfied that there is no genuine dispute between Mrs Hung and Mr and Mrs Bird concerning a tree. I am satisfied that, in addition to satisfaction of the jurisdictional pre-requisites contained in s 10 of the Trees (Disputes Between Neighbours) Act 2006 , there are two other essential prerequisites before the Court's jurisdiction can be enlivened under this legislation.

4 The first of those, as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at paras 144 and 145, is the existence of the relevant tree at the time the application is made. There is no doubt that this pre-requisite is satisfied in this case.

5 However, I am also satisfied, from a consideration of the long title of the Act ( An Act to provide for proceedings in the Land and Environment Court for the resolution of disputes between neighbours concerning trees; and for other purposes ) and of the then Attorney-General's second reading speech at its introduction that there must be a genuine dispute between the parties about the tree at the time the application was made before an application can be made under the Act. There was and is no such dispute in this case.

6 A separate process exists by which a person who is dissatisfied with a council's refusal of an application, to remove a tree pursuant a tree preservation order, can appeal against that decision. Such an appeal has the council as a contradictor to the appeal rather than a compliant neighbour with whom there is no genuine dispute concerning the tree.

7 Under the circumstances of this application, in the absence of any genuine dispute between the parties about the tree, the application must be dismissed, as the Court has no jurisdiction to entertain it.

Tim Moore
Commissioner of the Court