Weeraratne v Xi and Liu
[2018] NSWLEC 1548
•02 October 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Weeraratne v Xi & Liu [2018] NSWLEC 1548 Hearing dates: 2 October 2018 Date of orders: 02 October 2018 Decision date: 02 October 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is dismissed.
Catchwords: TREES [DISPUTES BETWEEN NEIGHBOURS]: tree located on boundary – risk of failure – damage – injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ridley v Gyler [2007] NSWLEC 220 Texts Cited: Nil Category: Principal judgment Parties: Ranjith Weeraratne (Applicant)
Jing Xi (First Respondent)
Xuesong Lui (Second Respondent)Representation: Ranjith Weeraratne, litigant in person (Applicant)
Jing Xi, litigant in person (First Respondent)
Xuesong Lui, litigant in person (Second Respondent)
File Number(s): 2018/198143 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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ACTING COMMISSIONER: This is an application, pursuant to s 7 of the Trees (Disputes between Neighbours) Act 2007(NSW) (Trees Act) by Ranjith Weeraratne of Beecroft. It concerns a large dead Gum tree (Eucalyptus microcorys) located on and across the side boundary with the neighbouring property, owned by Jing Xi and Xuesong Lui (the respondents).
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Mr Weeraratne contends that the tree is primarily located in his neighbour’s property, and that there is a risk of failure of trunks and branches that “may be a potential damage to my newly constructed house”, and a potential threat of “injury or death” to people in the garden and on the ‘road reserve’ (nature strip).
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The respondents have lived at their property for about three (3) years and claim to have been unaware of the dead tree or any issues with it upon purchasing the property, and until the applicant approached them verbally in March 2018.
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Mr Weeraratne then provided both ‘Notification 1’ on 27th April 2018 and ‘Notification 2’ on 11th May 2018 in writing. Both these were titled ‘Removing of two dead trees’ and both demand that the respondents remove them. The applicant claims that they offered to contribute to the removal cost when conducting verbal negotiations.
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In paragraph 2 of Notification 2, Mr Weeraratne writes that “you are the owner of dead two trees as the majority of tree routes are on your land” and advises that Court action will be commenced if they are not removed within the “next two weeks.”
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This proposal order is resisted by the respondents, who do not accept that the tree is primarily in their property, do not believe the applicant’s evidence proves this, and thus do not accept that they are responsible for organising the work or paying for the tree removal.
The site inspection
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The case commenced at the site of the tree, the base of which appears to span the side boundary between the two properties, and is also located within a metre of the front boundary facing the street.
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Case documentation variously refers to ‘the tree’ and to ‘two trees’. Though it is somewhat ambiguous, with the benefit of arboricultural knowledge I bring to the Court, it should be considered as a single tree with dual trunks.
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The tree is dead and the applicant contends that the tree has been dead for about four (4) years. The cause of death of the tree is not immediately apparent but may, as suggested by Mr Weeraratne, be related to damage by lightning that impacted and killed a nearby tree in the neighbouring property 4-5 years ago. Alternatively, it could have been caused by excavation and root severing related to the construction of a brick fence corner pillar by the applicant very close to the tree base.
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The site diagram provided by the applicant for Q2 of the Tree Dispute Claim Details shows that both trunks of the tree are located entirely or almost entirely in the respondents’ property.
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The reality on site, based on the location of the side boundary between the properties, is that the tree base is on the boundary and that about 60% of the tree base appears to be on the applicant’s land.
Jurisdictional requirements
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A series of jurisdictional requirements must be met for the Trees Act to be engaged.
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Within the definitions in s 3, it is noted that dead trees are included in the definition of the Act, with reference made to Ridley v Gyler [2007] NSWLEC 220.
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Section 4(3) states that:
For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.
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With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
Findings
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I have carefully inspected the tree and have read and considered all of the material that has been provided to me.
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At the initial hearing, with respect to the issue of whose property the tree is on, the Court Registrar noted, “I’ve instructed [the] applicant to get [a] survey but he says there are pegs there.”
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The applicant chose not to seek a survey to clarify the adjoining property boundary location, and when asked where the pegs are, he advised the Court that there were, in fact, no pegs.
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Mr Weeraratne further advised that he had not engaged a Surveyor due to the cost involved, and while acknowledging that this prevented certainty as to the location of the boundary, suggested that the current boundary fence should be used as it is likely to be on or, at worse, close to the boundary.
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The respondents were, unsurprisingly, opposed to accepting this ambiguity as to the boundary location. After receipt of ‘Notification 1’ in April 2018, Jing Xi and Xuesong Lui sought advice from Mr Gary Palmer, Tree Manager, Hornsby Council. The advice recommended engagement of a Surveyor and recourse to mediation through Community Justice. The respondents provided the applicant with a written reply to Notification 1 after seeking this advice.
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The onus is on the applicant to prove the location of the tree with respect to boundaries. This is achieved by survey. The applicant has chosen not to clarify this issue, and thus is responsible for any ambiguity and uncertainty.
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Based on my observations on site, the tree appears to be situated “wholly or principally on the land” owned by the applicant, as about 60% of the base appears to be on the applicants’ side of the line of the boundary fence.
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Therefore, this tree does not satisfy the requirements of s 7 of the Trees Act as the tree is not situated on adjoining land.
Orders
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The application is dismissed.
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J Douglas
Acting Commissioner of the Court
Decision last updated: 25 October 2018
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