Wazrin Pty Ltd v Pearson No 2

[2010] NSWLEC 1020

Land and Environment Court

of New South Wales

CITATION:	Wazrin Pty Ltd v Pearson No 2 [2010] NSWLEC 1020
PARTIES:	APPLICANT Wazrin Pty Ltd RESPONDENT Stuart Pearson
FILE NUMBER(S):	20725 of 2009
CORAM:	Fakes C
KEY ISSUES:	TREES (NEIGHBOURS) :- Property boundary
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420
DATES OF HEARING:	11/12/09
DATE OF JUDGMENT:	4 February 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms L Wren (Agent) RESPONDENT Mr S Pearson (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

4 February 2010

20725 of 2009 Wazrin Pty Ltd v Pearson No 2

JUDGMENT

1 COMMISSIONER: This is the final judgement relating to an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) made by Wazrin Pty Ltd, the owner of a residential flat building at 2 Ethel Street Randwick against the owner of a Canary Island Date Palm growing at the rear of 56 Howard Street Randwick. Mr Pearson owns that property.

2 At issue was a perceived risk of injury to persons from either the failure of the whole tree or the falling of fronds. That aspect of the application was dealt with in an extemporaneous judgement and interim orders given on 11 December 2009 [Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420].

3 The other matter raised in the application was the applicant’s contention that the tree had displaced a section of brick retaining wall between the two properties to the point where the applicant considered it to be dangerous. The applicant is seeking the reinstatement of this section of the wall and has been quoted a sum of $8,250 for this work.

4 At the on-site hearing in December 2009, Mr Pearson raised the possibility that the wall may be on his property. Under s 7 of the Trees Act:

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

5 That is, the property said to be damaged by a tree on an adjoining property, must belong to the applicant. As a consequence of the uncertainty as to the ownership of the property, directions were given for Mr Pearson to provide the Court and the applicant with a survey plan prepared by a registered surveyor.

6 Those directions were followed and a copy of the Surveyor’s report and the survey plan are reproduced as Annexure A to this judgement.

7 The report and the plan show that the portion of the brick wall in question, that being in the south-eastern corner of the respondent’s property, is within the respondent’s property.

8 That said, any further hearing is unnecessary because, as stated in paras 4 and 5, the Court’s jurisdiction only extends to damage caused to the applicant’s property and not to the respondent’s own property. The Orders for the annual removal of dead fronds, made on 11^th December, still stand.

9 Therefore the hearing scheduled for 15 February is cancelled and the additional Order of the Court is:

1. The application for the reinstatement of the brick wall is dismissed.

_______________________

J Fakes
Commissioner of the Court