Harrison & anor v Neuer & anor

Chronology of relevant communications

The original application nominated 8 respondents - being the owners of 4 lots along a right of way at the rear or southern boundary of the applicants' property; that is, the residential subdivision referred to in the applicants' orders in [2].
The application and claim form includes many documents including a survey sketch plan and report prepared for the applicants by HA Mackay Surveyors dated 20 October 2009. The plan (reference number 2929) and appended to this judgment, shows a hand drawn circle on the applicants' southern boundary with the notation "large tree on boundary (see report)". The accompanying report states (the relevant paragraphs are in italics): The boundaries of your property, lot 4 in Deposited Plan No. 581359, situated at 308 Oxley Highway have been redefined and remarked according to your instructions. The attached sketch plan shows the subject land and shows the dimensions thereof and the location of marks placed. The land is partly fenced as shown in the sketch. The land is burdened by a right of carriageway 3.9 metres wide, shown coloured yellow in the sketch, to benefit the adjoining lots 1, 2 and 3. The land is benefited by a right of carriageway 3.9 metres wide over part of the adjoining lot 3, shown green coloured in the sketch. An earth embankment supporting a driveway on the adjoining lot 4 DP 1075195 to the south encroaches over the southern boundary of the property by up to 1.3m as shown in the sketch. A large tree stands upon the southern boundary as shown in the sketch. The earth embankment on the adjoining lot 4 has been built up to approximately 800mm above natural ground level around the tree. The tree is leaning towards the subject land and at top of the embankment the edge of the tree stands approximately 100mm upon the adjoining lot 4. I have not excavated around the tree but the base of the leaning tree at natural ground level appears by estimation, to stand on the adjoining lot 4 by between 300mm and 500mm. Other than fencing irregularities, as shown on the sketch, and the earth embankment mentioned above, there are no apparent encroachments by or upon the subject property.
On 25 November 2014, and prior to the [first] directions hearing, the applicants forwarded additional information including a 'General Plan - Sewer/ Water/ Drainage' dated 24 March, 2004 relating to the subdivision of the lots to the south of their property which includes the location of several trees. This is the plan referred to the applicants' order #3. One tree is highlighted and presumably this is the Tallowwood. An extract of the construction plan with notations in red ink is attached. There is no indication as to who made the notations and when they were made. To the extent that any purpose may be served by them, whoever has made the notations has put questions marks against certain lines including "existing boundary?" As is the Court's practice, the information was placed in the file.
The directions hearing proceeded on 15 December 2014 before the Assistant Registrar of the Court. Mr Harrison participated as did Mr Kay, solicitor for the second and third respondents. The first and fourth respondents did not appear. The note on the file cover identifies the threshold issue of doubt as to the location and therefore ownership of the tree. The matter was adjourned for another directions hearing on 19 January 2015 and a direction made for the applicant to obtain a current survey to determine the location of the tree.
A letter from the applicants dated 22 December 2014 asks the Court to advise the applicants as to what constitutes an out of date survey.
In December the Court received further correspondence from the applicants including, as requested, affidavits of service on the various respondents.
On 27 December 2014 the applicants wrote to the Court stating that surveyors had advised them that in order to establish the original ground level the embankment in which the tree is located would require excavation with potential impacts on underground services. The applicants asked the Court for advice as to an acceptable survey method to establish the position of the tree.
The Court's Manager of Client Services wrote to the applicants on 8 January 2015 advising them that their letter had been placed on file. Relevantly the letter states: It is not appropriate for the Land and Environment Court to provide advice in relation to the issues you have outlined in your letter. It is suggested that you may wish to obtain your own independent legal advice in relation to the dispute.
Also on 8 January 2015, in response to the applicants' letter of 22 December 2014, the Assistant Registrar wrote to the applicants. The relevant paragraphs state: At the telephone directions hearing of 15 December 2014 it was not clear to the Assistant Registrar on whose property the tree or trees are located as you have nominated four respondents in your tree dispute application. Further, the solicitor representing respondents 2 and 3 raised a threshold issue and was of the view that the tree or trees were not on his clients' properties. Respondents 1 and 4 did not make an appearance. The Assistant Registrar on the day directed that you obtain a current survey which identifies where the tree or trees are located in relation to the boundary. This information is important as it will identify the correct owner of the tree or trees.
The applicants sent a further letter dated 31 December 2014 stating that the applicants had heard nothing from the respondents and had therefore assumed that the respondents did not wish to participate in the proceedings and would therefore be excluded from taking any part in any determination of the matter.
On 15 January 2015 the Court received a fax from the applicants of a letter dated 12 January but referring to an addendum to the surveyor's report dated 14 January 2015. The letter confirms that the adjoining land to the south is owned by the Neuers and bounds an easement that services the four lots in the subdivision. Amongst other things, the letter also raises concerns about termites in the tree. The bundle of material attached to the letter includes copies of the surveys included in the application as well as the drainage survey sent to the court on 25 November 2014; it also included an updated report form the surveyor.
No new survey sketch plan was prepared but the surveyor, H. A Mackay prepared "Addendum to boundary redefinition survey report, 308 Oxley Highway dated 20 October 2009, Reference 2929.308" and dated 14 January 2015. The addendum states (introductory paragraph 1 omitted): A large tree, approximately 800mm diameter, still stands upon the southern boundary of lot 4 and an unretained earth embankment still encroaches upon the subject land as detailed in my previous report dated 20 October 2009. The survey pegs previously placed by me at the corners of the southern boundary are still in place. I cannot determine by measurement, the position of the base of the large tree relative to the property boundary, at natural ground level, because I would need to excavate to a depth of approximately 800mm to locate the natural ground level and I have no authority to dig a hole on the adjoining property. Such an excavation may create instability of the roadway on the adjoining property. I have inspected a copy of the construction certificate plans, for the construction of a roadway and services on the adjoining property, prepared by Laundry & Beukers Pty Ltd, Reference No.4963, dated Jan 2003, amended 24 Mar 2004, and stamped by council on 31 March 2004. Sheet 1 of the plans shows the subject large tree with a notation "trees to be removed" and also shows the earth embankment encroaching onto the subject land. The tree still exists in the earth embankment and the embankment still encroaches upon the subject land.
Further correspondence was received from the applicants in regards to the respondents including a copy of an instrument created under s 88B of the Conveyancing Act 1919 providing for the terms of use of the right of way adjoining the applicants' southern boundary.
The second directions hearing proceeded before the Assistant Registrar as scheduled on 19 January 2015. Mr Harrison appeared as did Mr Kay for all respondents. Directions were made for the applicants to file a Notice of Motion to amend the application by removing all respondents except the Neuers and for the service of the current survey to Mr Kay. The matter was stood over until 16 February 2015.
A Notice of Motion and the first page of the amended application were filed with the Court on 22 January. The Manager of Client Services advised the applicants of the need to send a complete copy of the amended application.
This was duly done. The applicants also provided copies of photographs of the placement of the survey pegs along the boundary, including one showing the pegs in relation to the tree. They also included a copy of a letter dated 19 January 2015 sent to the respondents requesting permission to excavate around the base of the tree and onto their side of the boundary. The letter indicated that mechanical excavation equipment may be required and work may have to be carried out from the respondents' property.
A copy of a letter dated 22 January 2015 from the respondents' solicitors to the applicants was faxed to the court. The letter includes the statement: "Our clients do not agree to this [access to their property for the purposes of excavating the ground around the Tallowwood tree] and under no circumstances should you enter our clients' property for this or any other purpose".
On 22 January 2015 the applicants wrote to the Court advising of the serving of the current survey and requesting advice as to whether it had been accepted by the Court as confirming the location of the tree on the boundary and if so whether they could proceed to have the respondents take responsibility for their share of the tree's maintenance.
On 27 January 2015 the Manager of Client Services replied to the applicants by email and stated that "it is not the Court's role to advise an applicant where the tree is located in relation to the boundary. It is suggested that you may wish to obtain independent legal advice in relation to this matter".
On 6 February 2015 the Manager of Listings notified the parties that the matter had been listed for a further directions hearing on 16 February.
The third directions hearing on 16 February 2015 was heard by the Senior Commissioner who made further directions. Relevantly, the matter was listed for an on-site hearing on 15 April 2015. A proposed additional part of standard direction 13 - Access for inspections - in essence to enable the applicants to excavate but make good the work - was struck out. Order 6 directed that the applicants may file any additional information they wished to rely on by 18 March; the respondents were given until 9 April should they wish to put on any material.
The Court received a letter from the applicants dated 13 March 2015 that included a colour photograph of the location of the survey pegs in relation to the tree [a copy of which is attached to this judgment].
Further correspondence relating to service of additional material was received from both parties.

The hearing

The matter commenced on site on 15 April 2015. Mr Harrison, Mr Kay and Mr and Mrs Neuer were present. No experts, either surveyors or arborists were retained by the parties. The usual introductions were made including an explanation of the relevant jurisdictional tests and the order in which they must be determined. It was made very clear that the threshold matter of the tree's location relative to the boundary was the first step and that if the Court could not be satisfied on the evidence that the tree was not principally on the respondents' land, the Court would have no jurisdiction to make any orders, or indeed to make any other determinations, and the matter would be dismissed.
I observed the white survey pegs to be in the locations indicated in the applicants' photograph. With the benefit of walking up the embankment and observing the line of pegs in relation to the base of the tree, I am satisfied that the tree is principally and substantially located on the applicants' property and only a relatively small portion of the base of the tree, at the current ground level, is on the respondents' property.
This observation is consistent with the applicants' surveyor's report of 2009….that is 'at top of the embankment the edge of the tree stands approximately 100mm upon the adjoining lot 4'. While the surveyor goes on to state 'I have not excavated around the tree but the base of the leaning tree at natural ground level appears by estimation, to stand on the adjoining lot 4 by between 300mm and 500mm' the surveyor provides no rationale as to how he came by that conclusion. I also note that the level of detail in the survey sketch plan of October 2009 is insufficient to be of any assistance in determining the location of the tree.
With the arboricultural expertise I bring to the Court, I observed nothing unusual in the form of the tree to suggest that it originated on the respondents' property and has somehow grown radically asymmetrically towards the applicants' property. The attached photograph clearly shows root buttresses on the applicants' land near the bottom of the embankment which would indicate that the base of the tree on that side is close to natural ground level. In my opinion even allowing for the increase in soil level as a consequence of the embankment, there is nothing to indicate that the tree is other than principally on the applicants' land.
In regards to the construction plans supplied by the applicants and referred to by the surveyor, the quality of the reproduction and lack of specific notations as to the actual boundary of the plans provides no assistance to the court. I note that the plans were amended in March 2004 and that while the surveyor states in his addendum to his original report that he viewed those plans, he makes no further comments as to whether those plans provide any assistance. If the surveyor was the person who made the notations on the marked up extract (see [11]) it is clear there was some degree of confusion over critical elements of the plan.
There is no evidence as to when the subdivision works were completed. At the hearing Mr Harrison stated that he had owned his property for about 8 years and that the embankment was present when he purchased the property. Therefore apart from some erosion that may have occurred over the years, it is reasonable to assume that the ground level observed by the surveyor in 2009 and by me at the hearing is substantially the same level it was when the applicants purchased their property. In my view this is the appropriate and only practical level at which the location of the base of the tree relative to the surveyed boundary can be determined. That is, the ground level at the time the applicants purchased their property and being the same level at the time the application was made.
I am also satisfied that the Land and Environment Court staff involved with this matter have provided Mr Harrison with an appropriate level of assistance and have clearly stated the level of assistance that the court is able to provide.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Cited By (1)