Awad v Hardie [2010] NSWLEC 1213

Land and Environment Court of New South Wales

CITATION : Awad v Hardie [2010] NSWLEC 1213 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT F Awad PARTIES : RESPONDENT Ms L Hardie

FILE NUMBER(S) : 20160 of 2010

CORAM: Moore SC

KEY ISSUES: EVIDENCE - TREES (NEIGHBOURS) :- inadequate survey; failure to comply with direction for survey of location of a trree on boundary; failure of expert to comply with directions for expert evidence; necessity to know proportions of tree on each property at point where trunk enters the ground for the purposes of determining upon which property the tree is "principally" situated as required by s 4(3) of the Trees (Disputes Between Neighbours) Act 2006

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006, s 4(3) Uniform Civil Procedure Rules 2005, Part 31 r 27; Sch 7

DATES OF HEARING: 11 June and 23 July

EX TEMPORE JUDGMENT DATE : 23 July 2010

APPLICANT Mr S Mir, agent LEGAL REPRESENTATIVES: RESPONDENT Ms D-M Hardie, agent

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

23 July 2010

10/20160 Awad v Hardie

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: In this matter, directions were given on 23 April 2010 for Ms Awad to have a survey undertaken of the location of the tree, a Camphor Laurel, that is on the boundary between Ms Awad's property and Ms Hardie's property. The survey was to be undertaken in order to determine which of the properties was the property upon which the tree was principally situated as required by s 4(3) of the Trees Act. The survey that was provided in response to that direction indicated, in the survey report, that that survey had been taken in a point significantly above ground level rather than at ground level. On 11 June when the first site inspection was undertaken by me and Acting Commissioner Galwey, we pointed out the deficiency in the survey and granted an adjournment until a second hearing to permit a new survey to be undertaken at ground level.

2 On 15 June, I wrote to Mr Mir, who is the agent for Ms Awad in these proceedings, giving a direction that a further survey be undertaken to determine the proportion of the tree at the point where its trunk enters the ground that is located on Ms Awad's side of the fence and the proportion of the tree where the trunk enters the ground that is located on Ms Hardie's side of the fence. That letter indicated that Acting Commissioner Galwey and I appreciated that there appeared to be differing ground levels around the base of the tree (particularly in the south-east corner on Mrs Hardie's property). Nonetheless, we drew Mr Mir's attention to the principle that had been applied by the Court that, for boundary trees, the property upon which the tree is principally located is determined by having regard to the proportions of the tree on each property at the point where the trunk enters the ground on that property.

3 When I attended the site this morning, I sought the consent of the parties from the parties for me to proceed to hear and determine the matter in the absence of Acting Commissioner Galwey and the parties agreed to that position.

4 I then inspected part of Ms Awad's property and proceeded to take the tendering of evidentiary material. Part of the proposed evidentiary material was a further survey, signed by Mr Mansell, about the location of the tree done in response of the direction that had been made. Mr Mansell had conducted the earlier survey to which I have referred.

5 Evidence given by Ms Hardie was that she had observed that Mr Mansell had not measured the tree at ground level and, particularly, had simply run a metal tape around the tree. In response to that significant evidentiary difficulty and the fact that Mr Mansell's second survey report, contrary to direction 14 made on 23 April, did not contain the acknowledgements set out in that direction for compliance with the Uniform Civil Procedure Rules concerning expert witness reports, I adjourned the proceedings for a short period of time for Mr Mir to arrange for Mr Mansell to attend the hearing. 6 Mr Mansell attended the site a short time later and gave evidence (after being advised that, although not sworn in, he was under the same obligations to the Court as if he had been giving evidence in the witness box). He informed me, in response to my inquiries, as to how he had measured the tree and that he had done so by running a metal tape around it. However, during the course of his evidence, there were two matters that were of concern to me in respect to this evidence. The first arose as he indicated that he had not measured indentations in the trunk (there being several of those on Ms Hardie's side of the fence). The consequence that necessarily follows is that the area of those indentations at the point where the trunk enters the ground had been included in (but should have been excluded from) the area of the trunk of the tree contrary to the direction that was given for these purposes. Second, on the side of the tree that is on Ms Awad's property (but is enclosed by a fence only accessible from Ms Hardie's property) there is a considerable volume of leaf litter and other detritus that is above ground level and clearly had not been disturbed during the course of his measuring.

7 Mr Mansell was provided the opportunity to indicate whether he had moved the leaf litter and other detritus and he indicated that he had not and that he had measured above it and then made an estimation of what should be the area below at the point where the trunk entered the ground at those points. He also indicated that he had undertaken a check measurement at a higher level, approximately at the normal breast height for measuring the diameter of trees, as part of a check of what he described as his calculations.

8 I am satisfied that Mr Mansell has not carried out a survey of the proportion of tree, that is the trunk of the tree at the point where it enters the ground, as being on each property. For that reason and for the separate (but lesser reason of the non-acknowledgement of his obligations pursuant to the Uniform Civil Procedure Rules) I rejected his second survey report as evidence. As a consequence of that, as was the case during the first attendance at the site, the Court is unable to be satisfied that the tree is located principally on Ms Hardie's property.

Tim Moore Senior Commissioner NOTE: After giving this decision, a further adjournment was granted to Ms Awad, without opposition, to have Mr Mansell undertake a proper survey as originally directed.

06/08/2010 - Punctuation - Paragraph(s) 8

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