Land and Environment Court New South Wales

• Medium Neutral Citation: Liu v Morris [2012] NSWLEC 1345
• Hearing dates: 28 November 2012
• Decision date: 28 November 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); only an owner of the land can make an application; a right of carriageway is not ownership of land; application dismissed.
• Legislation Cited: Conveyancing Act 1919; Real Property Act 1900; Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Chun Fang Liu (Applicant); Philip Morris (First Respondent); Anna-Marie Morris (Second Respondent)
• Representation: Chun Fang Liu (Applicant) [Litigant in person]; Philip Morris and Anna-Marie Morris (Respondents) [Litigants in person]
• File Number(s): 20901 of 2012

Judgment

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

1 ACTING COMMISSIONER: The layout of residential lots in a cul de sac in Illawong has resulted in the need for a right of carriageway across some properties to provide access to others.

2 Mr and Mrs Morris own land at number 25, with frontage to the street. A narrow strip of their land along their eastern side boundary has a right of carriageway over it. Similarly, their neighbour's land at number 19, also with street frontage, has a right of carriageway over a narrow strip of land along its common boundary with the Morris' land. These two rights of carriageway combine to create a driveway that provides vehicular and pedestrian access to the two properties behind and to the north: properties number 21 and 23. Both properties number 19 and 25 have fences within them along the edges of their rights of carriageway, so that each side of the driveway to numbers 21 and 23 is fenced along its length. Although this creates the appearance that the driveway is separate land between numbers 19 and 25, the owners of these two properties each own half of the driveway, split along its length.

3 A large gum tree grows on the Morris' land, just in from the fence along the edge of the driveway.

4 For some time, Ms Liu has been concerned about a section of the driveway near the tree, where she says roots from the adjacent tree have lifted the driveway, making it unsafe and not fit for use. Mr and Mrs Morris do not dispute that the tree has damaged the driveway. Ms Liu is also concerned about root damage to the sewer pipe, stormwater pipe and electricity cables that pass along the edge of the driveway and service her dwelling. Ms Liu has applied to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the "Trees Act") seeking orders for the removal of the gum tree and several other trees, as well as compensation for the cost of works to repair damage to the driveway and services.

5 Mr and Mrs Morris, the respondents to the application, submitted a survey plan clearly showing that the area of damaged property (driveway, sewer, electricity assets) is entirely within the part of their property that is covered by the right of carriageway.

Damage is to property on the respondents' land

6 According to Part 1, Schedule 8 of the Conveyancing Act 1919, a right of carriageway is:

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.

7 The dominant tenement is, in this case, the applicant. The respondents are the servient tenement. The servient tenement does not give up ownership of its land.

8 Under Part 2 of the Trees Act, s 7 states that (my emphasis):

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.

9 At s 3, Definitions, an "owner of land includes the occupier of the land." My reading of Part 1, Schedule 8 of the Conveyancing Act 1919 gives the respondent a right to pass over the land but this is not, and in my mind is significantly less than, a right to occupy the land.

10 I appreciate that an easement such as a right of carriageway may have its own terms. The Real Property Act 1900 states at s 47(5A):

The terms or site of a registered affecting interest may be varied by a registered dealing in the approved form, or by such a dealing and a plan illustrating the varied site registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919.

11 However Ms Liu has provided no evidence that the terms of the right of carriageway in which she is the dominant tenement have been varied in such a way that would demonstrate she occupies the land.

12 In a similar manner, the other easement, namely an easement for services, gives Mrs Liu the right to use the land for the drainage of water, the drainage of sewage and the transmission of utilities such as electricity, but does not, in my mind, make her an owner or occupier of the land.

13 As a result, the only conclusion I can make is that Mr and Mrs Morris are the owners of the land on which the damage has occurred. It follows that, according to s 7 of the Trees Act, Ms Liu may not apply for any orders for rectification of, or compensation for, damage to property that is not on her land. She will need to find other means to resolve the issue.

14 Consequently, the application is dismissed.

Orders

15 The orders of the Court are:

 

(1) The application is dismissed.

 

 

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 18 December 2012