Low v Muir

[2017] NSWLEC 1386

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Low v Muir & anor [2017] NSWLEC 1386
Hearing dates:	19 July 2017
Date of orders:	19 July 2017
Decision date:	19 July 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See paragraph [18]
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Land and Environment Court Act 1979
Cases Cited:	Low v Muir [2012] NSWLEC 1092 Low v Muir (No 2) [2013] NSWLEC 153
Category:	Principal judgment
Parties:	Fay Low (Applicant) William and Allison Muir (respondents)
Representation:	Applicant: Mrs F Low (Litigant in Person) First Respondent: Mr J Varoutsos (Agent) Second Respondent: Mrs A Muir (Litigant in person)
File Number(s):	56193 of 2017

judgment

1. COMMISSIONER: In 2012, Mrs Low applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of seven trees growing on the Muir’s property along the common side boundary. The orders were sought on the basis of Mrs Low’s contention that the trees were blocking her sewer and lifting concrete paving at the rear of her property.

2. In Low v Muir [2012] NSWLEC 1092, Acting Commissioner Galwey notes that the parties came to an agreement as to an appropriate course of action. After considering the relevant jurisdictional and discretionary matters, consent orders were made for the removal of three of the trees and the poisoning of their stumps. It was agreed that a Paperbark be retained if possible. Orders were also made for the removal and replacement of the dilapidated dividing fence in accordance with s 13A of the Dividing Fences Act 1991 (Fences Act).

3. The nominated trees were removed however a Fiddle-leaf Fig has regrown. The fence has yet to be replaced.

4. The application now before the Court requests the removal of the Paperbark, several small self-sown trees, and the Fiddle-leaf Fig. Mrs Low also seeks the removal and replacement of the sewer and concrete paving at the Muir’s expense. It is agreed that the cost of replacing the common boundary fence be shared equally.

5. Orders are also sought for reimbursement of the application filing fee. In regards to this element of the claim, Commissioners do not have the jurisdiction to award such costs and a separate Notice of Motion would have to be filed and be determined by a Registrar or Judge of the Court.

6. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

7. Injury is not pressed.

Concrete

8. Concerning the damage to the concrete, I am satisfied that the roots of the Paperbark, which is very close to the boundary, have lifted an approximately 3-4 m2 section of concrete paving immediately adjoining this…