Perry v Griffiths

[2016] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation:	Perry v Griffiths [2016] NSWLEC 1357
Hearing dates:	26 August 2016
Date of orders:	26 August 2016
Decision date:	26 August 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Potential damage to property and or injury; jurisdiction; adjoining land
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Mr H Perry (Applicant) Mr R Griffiths (Respondent)
Representation:	Applicant: Mr H Perry (Litigant in person) Respondent: Mr R Griffiths (Litigant in person)
File Number(s):	151283 of 2016

Judgment

1. COMMISSIONER: The applicant is concerned that overhanging branches of a Sydney Blue Gum growing on the respondent’s property may fall and cause damage to his dwelling or injury to anyone on his property. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking the removal of those overhanging branches.

2. Section 7 of the Trees Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the applicant’s land, or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land.

3. The tree the subject of the application is a mature Eucalyptus saligna (Sydney Blue Gum) growing at the rear of the respondent’s property. The applicant’s property is across a creek and to the northwest of the respondent’s property.

4. The diagram in the application claim form illustrates the relationship between the properties and indicates the particular branches in question. It is not clear from the diagram as to where the cadastral boundaries of the properties extend across the creek.

5. It was confirmed on site that the boundary of each property extends across the creek to the opposite property, and therefore, while the branch overhangs the applicant’s property, the base of the tree, being the point at which location is measured, is not on adjoining land. As discussed during the hearing, it is not always possible to confirm location without attending the site.

6. As a consequence, the Court has no jurisdiction to determine the matter or to make orders for any intervention with the tree. That said, during the on-site hearing, the parties discussed a possible acceptable outcome.

7. Given the absence of jurisdiction, the Orders of the Court are:

1. The application is dismissed.

______________________

Judy Fakes

Commissioner of the Court

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