Land and Environment Court New South Wales

• Medium Neutral Citation: Browne v Slack-Smith & anor [2014] NSWLEC 1081
• Hearing dates: 28 April 2014
• Decision date: 28 April 2014
• Jurisdiction: Class 2
• Before: Moore SC

Decision

The application is dismissed.

• Catchwords: Jurisdiction
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Dividing Fences Act 1991
• Cases Cited: Browne v Slack-Smith & anor [2013] NSWLEC 1198
• Category: Principal judgment
• Parties: A Browne (Applicant); S and J Slack-Smith (Respondents)
• Representation: Applicant in person; Respondents No appearance – excused attendance
• File Number(s): 20026 of 2014

Judgment

1 SENIOR COMMISSIONER: On 16 October 2013, Fakes C heard and determined an application under section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the applicant in these proceedings against the respondents in these proceedings (see Browne v Slack-Smith & anor [2013] NSWLEC 1198). The Commissioner made orders in those proceedings that finalised the matters then in dispute between parties. During the course of those proceedings, Mr Browne sought to raise matters concerning a brick wall that acted as a dividing fence between the properties of the parties. However, he had not sought to engage the provisions of section 13A of the Dividing Fences Act 1991 in his application under the Trees Act. At paragraph 13 of her decision, Fakes C observed at (13):

In making his application under the Trees Act, the applicant has not sought to engage s 13A of the Dividing Fences Act 1991 (the Fences Act) as a means of achieving the repair of the fence, an option available to him.

2 Because Mr Browne wished to seek the Court's intervention with respect to the brick dividing wall, he made a further application under the Trees Act seeking to invoke the Court's assistance in resolving the dispute with his neighbours over this brick structure. In his further application, in the section dealing with the orders that the applicant is asking the Court to make, Mr Browne said:

Cost of remedial works to a 1.1 m length of brick fencing. This element of file number 20463/2013 not heard by Court as application did not enable section 13A of Dividing Fences Act.

3 At several points in the supporting material that accompanied this fresh application, Mr Browne referred to the fact, by implication, that the issues relating to the tree that had provided the basis for the original application had now been finalised. When this further application came before the Court for directions, as a potential issue of lack of jurisdiction arose, the matter was referred to me to conduct the preliminary hearing.

4 On that occasion, I drew Mr Browne's attention to the terms of section 13A(2)(a) of the Dividing Fences Act, a provision that is in the following terms:

(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) ..................

5 I indicated to Mr Browne that I proposed to set the matter down for a hearing, on site, confined to the jurisdictional issue and that I proposed to do that even though the respondents were not able to attend on the date nominated. The respondents had, during the course of the preliminary hearing, indicated that they did not wish to be heard on the jurisdictional threshold position. As a consequence, the matter was fixed for hearing on the jurisdictional question and the respondents were excused, by consent, from attending on that occasion. During the course of preliminary hearing after the jurisdictional issue had been raised with Mr Browne, he indicated that he would contemplate discontinuing the proceedings but he did not, subsequently, do so. As a result, I attended his property today for the purposes of dealing with the jurisdictional issue.

6 Although Mr Browne invited me to inspect the brick structure, I indicated to him that this was not appropriate as my determination was to be directed solely to the issue of whether the jurisdiction of the Court under the Dividing Fences Act could conceivably be engaged by his fresh application. I invited Mr Browne to explain to me what, if any, were there undetermined matters under the Trees Act that satisfied and enabled the engagement of section 13A of the Dividing Fences Act.

7 Mr Browne indicated to me that he was unable point to any basis that can cause me to be satisfied that there were matters arising out of an application under the Trees Act that had been commenced but not yet determined, that being the relevant test for jurisdictional engagement in s 13A(2)(a) of the Dividing Fences Act. Whilst Mr Browne sought to be permitted to explain the history of his dispute with his neighbours over the brick structure and indicated that he accepted he had made a mistake in not seeking to engage section 13A of the Dividing Fences Act in his earlier application, I explained to him that those matters were not relevant to the very confined jurisdictional point with which I was obliged to deal.

8 Mr Browne may or may not have some legitimate grievance with his neighbours over the brick structure (a matter about which I have no knowledge and express no opinion). However, the jurisdiction of the Court to deal with those issues could only have been engaged, had this properly occurred, in the process of determining and disposing of the matters considered and finalised by Fakes C in October 2013. The inevitable consequence of the finality of the October 2013 decision was that this fresh application was required to be dismissed as there was no jurisdiction to entertain it. I advised Mr Browne of this position and indicated to him that I would provide, and as I have done in this decision, written reasons for my doing so and that a copy of those reasons would be provided to him and a copy forwarded to the respondents for their information.

9 As a consequence of all of the foregoing, the order of the Court is:

(1) The application is dismissed.

Tim Moore

Senior Commissioner

Decision last updated: 12 May 2014