Riachi v Kerslake - [2010] NSWLEC 1153

Land and Environment Court

of New South Wales

CITATION: Riachi v Kerslake [2010] NSWLEC 1153

PARTIES:
APPLICANTS
John & Fiaryal Riachi
RESPONDENT
Grahame Kerslake

FILE NUMBER(S): 20283 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Potential damage to property
Property not in existance
Boundary tree

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 22/06/2010

DATE OF JUDGMENT:
22 June 2010

EX TEMPORE JUDGMENT DATE: 22 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
John Riachi [litigant in person]
RESPONDENT
Grahame Kerslake [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

22 June 2010

20283 of 2010 Riachi v Kerslake
JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Hermitage Drive Illawong against the owner of a tree growing substantially on an adjoining property.

2 The applicants are seeking the removal of the tree as they contend that it could potentially cause damage to a newly constructed pool and to filtration equipment and pool motors that are yet to be installed. They state that future root growth will damage the wall of a waterfall to be created at the eastern end of the pool. They also contend that the tree will create difficulties for the erection of a dividing fence and pose issues for security and access to the (yet to be installed) pool equipment.

3 The tree is a Glochidion ferdinandi (Cheese Tree) that has been reduced to a stump of about 2 m high but is still alive. In Robson v Leischke [2008] NSWLEC 152 at para 147, Preston CJ makes it clear that:

“The concept of a “tree” is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land.”

4 The tree straddles the boundary of the two properties. A partially completed swimming pool has been constructed within about 2 m of the tree.

5 Given the location of the tree on the boundary, the applicant was directed to have the boundary line surveyed and marked appropriately. It is essential to determine the ownership of the tree for the reason given in s 4(3) of the Act.

“For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land”.

6 In this matter, I am satisfied that more than 50% of the tree is situated on the respondent’s property.

7 By way of background, the respondent applied to Sutherland Shire Council to have the tree removed in order to build a fence. Evidence provided by the respondent (exhibit 1) indicates that council assessed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Riachi v Kerslake

Details

AGLC: Riachi v Kerslake [2010] NSWLEC 1153
Case: [2010] NSWLEC 1153
Decision Date: 22 June 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over the case of Riachi v Kerslake. The applicants, John and Fiaryal Riachi, sought the removal of a boundary tree owned by the respondent, Grahame Kerslake. The applicants claimed that the tree could potentially cause damage to their newly constructed pool and the filtration equipment and pool motors yet to be installed. They also argued that future root growth would damage the wall of a waterfall to be created at the eastern end of the pool and pose issues for security and access to the pool equipment.

The court needed to determine whether the tree had caused, was causing, or was likely to cause damage to the applicants' property in the near future. Additionally, the court had to decide if the tree was situated on the applicants' or the respondents' property, as this would determine the court's jurisdiction under the Trees (Disputes Between Neighbours) Act 2006.

The court found that more than 50% of the tree was situated on the respondent's property, thus giving the court jurisdiction. The court also determined that there was no evidence that the tree had caused or was causing damage to the applicants' property. Furthermore, the court held that it was highly unlikely that the roots of the tree would cause damage to the wall on which the waterfall was to be built, given the condition of the tree and the nature of the construction on which the wall sits. The court concluded that the applicants had not provided sufficient proof to establish that the damage they anticipated was due to the tree.

The court dismissed the applicants' application to remove the tree, stating that it was beyond the court's jurisdiction to order any interference with a tree on the basis of property that did not yet exist. The court also noted that a further application could be made in the future if the tree became likely, in a future period beyond 12 months, to cause damage to property.

Orders