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Jurd & Anor v Belonga Pty Ltd [2012] NSWLEC 1153 (7 June 2012)

New South Wales Land and Environment Court

Jurd & Anor v Belonga Pty Ltd [2012] NSWLEC 1153 (7 June 2012)

Last Updated: 18 June 2012

This decision has been amended. Please see the end of the decision for a list of the amendments.

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. ACTING COMMISSIONER: Mr and Mrs Jurd lodged an application with the Court on 15 February for the removal of a neighbouring Camphor Laurel. The crown of this large tree extended above their property. They sought orders for its removal under s 7 of the Trees (Disputes Between Neighbours) Act 2006 on the grounds it had caused damage to their property, was likely to cause further damage and was likely to cause injury. They also sought orders for repair to the fence along the common boundary.
   

Onsite hearing

2. Mr Jurd, the applicant in this matter, attended the onsite hearing but the respondent did not appear. It was immediately obvious at the onsite hearing that circumstances had changed somewhat since the application was lodged. The tree had been removed to ground level.
   
3. As the applicant no longer wished to, nor needed to, press any claim regarding interference with the tree, we turned our attention to the fence.
   
4. The tree was in the respondent's rear garden adjacent to the side fence running along the common boundary between the two properties. From the front part of the boundary to a point near the rear of the applicant's dwelling, the fence is a 1.5 m colourbond type constructed some time ago by agreement between the parties. From that point to the rear boundary the fence is an older construction, of a different type of material, in a somewhat dilapidated state. The tree was adjacent to this section of the fence. Near the tree stump a section of the fence has been removed and temporarily patched with what appears to be some roofing material. The base of the original fence has been displaced by growth of the tree stump at the boundary. The top of the fence has been damaged at several locations, according to the applicant's statement, by tree branches during the tree's removal.
   

Jurisdiction

5. Although the tree has now been removed, for the purposes of the application the Court considers the tree to still be situated on the land according to s 4(4) of the Act, which states:
   

Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

6. The boundary fence has been damaged by the tree: while it grew and its increasing girth at its base lifted and displaced the fence; and during its removal when branches fell onto the fence. I am satisfied that the tree has caused damage to the applicant's property and so meets the jurisdictional test at s 10(2)(a) of the Act.
   
7. Based on the above, the Court has jurisdiction and can make orders. No orders are required for the tree but they may be appropriate for the fence. The Dividing Fences Act 1991 gives this Court jurisdiction at s 13A.
   

13A Jurisdiction of Land and Environment Court

(1) The Land and Environment Court has jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies.

(2) This section only applies if:

(a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and(b) the tree that is the subject of those proceedings: (i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or(ii)is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant's property or is likely to cause injury to any person.

8. The tests at both 13A(2)(a) and 13A(2)(b)(i) of the Dividing Fences Act 1991 are satisfied in this matter so the Court can hear the matter regarding the fence.
   

Other matters to consider

9. The only matter under s 12 of the Act that I find relevant here is at s 12(h)(i). The section of fence between the rear gardens of the properties is aged and dilapidated. It is older than the front section of the fence. Growth of the tree contributed to the fence's poorer condition near the tree. And although tree branches caused damage to the fence during tree removal, this was a direct result of the work practices utilised by the contractor carrying out the work. Overall, other factors than the tree have contributed to its condition. However I will not apportion a greater part of any fencing works to the respondent, as the applicant concedes that the fence needed replacement regardless of the tree, although the recent damage has brought forward the timeframe in which the fence should be replaced.
   

Conclusions

10. The Court has jurisdiction to make orders regarding the fence and finds it appropriate to do so.
    

Orders

11. The orders of the court are:
    • (1) Within 14 days of the date of these orders both parties are to obtain at least one quote to remove the common boundary fence at the rear of the two adjoining properties, from the newer fence near the rear corner of the applicant's dwelling to the rear boundary, and to replace it with a 1.5 metre colourbond fence similar to the section of fence between the dwellings.
    • (2) Within 14 days of the date of these orders the two parties are to agree on the quote to be accepted. If they cannot agree, the applicant may choose the quote to be accepted.
    • (3) The selected fencing contractor is to be engaged by the parties to remove and replace the fence as described above in (1) within 60 days of the date of these orders.
    • (4) Both parties are to provide all access required for the works.
    • (5) The parties are to share equally the cost of the fencing works in (1).
      

D Galwey

Acting Commissioner of the Court

Amendments