Low v Muir (No 2)

[2013] NSWLEC 153

Land and Environment Court

New South Wales

Medium Neutral Citation:	Low v Muir (No 2) [2013] NSWLEC 153
Hearing dates:	18 September 2013
Decision date:	18 September 2013
Jurisdiction:	Class 2
Before:	Biscoe J
Decision:	Applicant's notice of motion filed on 3 October 2012 is dismissed.
Catchwords:	TREES - orders made for removal of trees and replacement of boundary fence - applicant complains that orders not complied with and files notice of motion for orders to similar effect and, in lieu of the respondents not carrying out the work, for the Court to arrange for the local council to remove the trees.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Low v Muir & Anor [2012] NSWLEC 1092
Category:	Procedural and other rulings
Parties:	Fay Low (Applicant) Alison Muir (First Respondent) William Muir (Second Respondent)
Representation:	COUNSEL: Fay Low in person (Applicant) N/A (Respondent) SOLICITORS: N/A
File Number(s):	20030/12

EX TEMPORE Judgment

1. The applicant, Ms Fay Low, owns a residential property known as 179 Denison Street, Newtown. Her neighbours, Mr William Muir and Mrs Alison Muir, own an adjoining residential property known as 177 Denison Street, Newtown. Pursuant to the Trees (Disputes Between Neighbours) Act 2006, on 12 April 2012 an Acting Commissioner of the Court made orders (Low v Muir & Anor [2012] NSWLEC 1092) including:

(a)   that the respondents engage and pay for a suitably qualified arborist to remove four specified trees on their property within 60 days of the date of the orders; and that if stumps remain they are to be poisoned immediate; and

(b)   that the parties thereafter engage a fencing contractor to replace part of the boundary fence within 90 days of the date of the orders.

1. The applicant complained that the respondents did not comply with those orders and, consequently, on 3 October 2012 filed a notice of motion, with which I am now dealing, seeking orders:

(a)   that those trees be removed and for a fencing contractor to replace the boundary fence; and

(b)   in lieu of these works not being carried out by the respondents, "for the Court to arrange for Marrickville Council" to remove the trees.

1. The object of the notice of motion was to enforce the orders made in April 2012. However, in my view, the notice of motion was misdirected. It should have been framed as a motion for the respondents to be found guilty of contempt and punished for disobeying the orders, for this is the principal way in which civil orders are enforced.

1. The notice of motion was returnable before the Registrar on 25 October 2012 when a Ms Leone Cohen appeared as agent for the applicant. By letter to the Registrar dated 30 October 2012, Ms Cohen sought an adjournment for 30 days on the basis that the parties were, to some extent, co-operating to resolve the matter. The Registrar granted the adjournment. On 9 April 2013 the Registrar wrote to Ms Cohen inquiring whether she wanted to discontinue. On 26 April 2013 Ms Cohen notified the Registrar that she no longer acted for the applicant. On 14 August 2013 the motion was listed for hearing today.

1. Upon the motion being called on for hearing this morning, Ms Low appeared in person and there was no appearance for the respondents. It appears from what Ms Low told me that the respondents have now removed the four trees and poisoned the stumps but that one of the stumps has regenerated. Ms Low said she now wishes to obtain orders under the Act that another tree be removed as well as the regenerated stump. She intends to file a fresh application under the Act to obtain those orders.

1. In the circumstances, the order of the Court is that the applicant's notice of motion filed on 3 October 2012 is dismissed.