Kiefel v Pendergast

[2013] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kiefel v Pendergast [2013] NSWLEC 1126
Hearing dates:	17 July 2013
Decision date:	17 July 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage; injury; no evidence to support tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hornsby Shire Council v Malcolm (1986) LGRA 429 P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mrs E Kiefel (Applicant) Mr B Pendergast (Respondent)
Representation:	Applicant: Mrs E Kiefel (Litigant in person) Respondent: Mrs S Pendergast (Agent)
File Number(s):	20260 of 2013

Judgment

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

1. COMMISSIONER: The applicant owns a property in Tamworth. She is concerned that a tree growing on a neighbouring property could fall and cause damage to her dwelling or serious injury to anyone in it.

1. The applicant has applied to the Court under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders for the removal of the tree at the respondent's expense.

1. Material on the Court's file indicates that the application was made with the assistance of the applicant's daughter however, the applicant's daughter did not participate in the proceedings. The respondent's neighbour observed the proceedings.

1. The respondent does not wish to remove the tree and has no safety concerns in regards to its location.

Jurisdiction

Adjoining land

1. Section 7 of the Act states:

7 Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

1. The Court has applied the decision in Hornsby Shire Council v Malcolm (1986) LGRA 429 in which the Court of Appeal held that adjoining land need not mean 'immediately linked to' or contiguous with'. This has been applied in P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 to separation by a public road.

1. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [157] states in part:

...The concept of "adjoining land" evidently includes properties that abut each other, but might also include properties that are separated by other land, such as a public road or drainage easement, provided there is a relevant connection in the sense that the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property...

1. In this case, the parties' properties are separated by a council-owned easement about 4m or so wide. The grassed easement facilitates council's maintenance of a nearby reserve and enables pedestrian…