Aaron v Haynes - [2007] NSWLEC 294

Land and Environment Court

of New South Wales

CITATION: Aaron v Haynes [2007] NSWLEC 294

PARTIES:
APPLICANT
Louise Aaron
RESPONDENT
John & Janys Haynes
INTERVENOR
Blue Mountains City Council

FILE NUMBER(S): 20136 of 2007

CORAM: Moore C - Hussey C - Fakes AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Applicability of Act to Living Bushland Conservation Zone under the Blue Mountains Local Environmental Plan

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Blue Mountains Local Environmental Plan

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 25 May 2007

EX TEMPORE JUDGMENT DATE: 25 May 2007

LEGAL REPRESENTATIVES:

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
HUSSEY C
FAKES AC

25 May 2007

07/20136 Louise Aaron v John & Janys Haynes

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

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application has been lodged by Ms Louise Aaron, the owner and occupant of 98 Evans Lookout Road, Blackheath.

3. The application concerns a mature Pine tree (Pinus radiata) located on the adjacent property immediately to the south at 96 Evans Lookout Road. This property is owned by Mr and Mrs Haynes.

4. The application is put on two bases with the first relating to damage to Ms Aaron’s property and the second to risk of injury to Ms Aaron. There is no claim made for compensation as part of the application.

5. These two matters raise two of tests provided for in s 10(2) of the Act.

6. The claim for damage to Ms Aaron's property is for both past and continuing damage that requires to be responded to, in her view.

7. She tells the Court that she has been required to replace a drainage pipe that became impassably blocked as a consequence of filling with pine needles.

8. We have had the opportunity, during the course of the site view, to see the extent of the drop of needles from the pine tree onto her roof and falling into the gutters and into the valleys of her roof.

9. It is important to note, as a preliminary point, that the properties are located in a Living Bushland Conservation Zone to pursuant to the Blue Mountains Local Environmental Plan. Consistent with the provisions s 4(1)(a) of the Act, for the Court have any jurisdiction, we must be satisfied that, in broad terms, this zoning is one which is analogous to a residential zone.

10. We have carefully observed the nature of the settlement pattern in the vicinity of the two properties which are involved in this application and the streetscape of the road in which they are located.

11. we are satisfied that the zoning, although not using the word residential, is, in fact, a zone of a residential character and thus, in that regard, the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aaron v Haynes

Details

AGLC: Aaron v Haynes [2007] NSWLEC 294
Case: [2007] NSWLEC 294
Decision Date: 25 May 2007

CaseChat Overview and Summary

In the case of Aaron v Haynes, the applicant, Louise Aaron, sought an order under the Trees (Disputes Between Neighbours) Act 2006 against John and Janys Haynes, who were the owners of a property adjacent to hers. Ms Aaron's application concerned a mature pine tree on the Haynes' property, alleging both damage to her property and a risk of injury to her. The application was heard by the Land and Environment Court of New South Wales, presided over by Moore C, Hussey C, and Fakes AC.

The court was tasked with determining whether the Act applied to the situation given that the properties were located in a Living Bushland Conservation Zone, as defined by the Blue Mountains Local Environmental Plan. The court also had to assess if the damage to Ms Aaron's property and the risk of injury met the criteria set out in section 10(2) of the Act. The application was put forward on two grounds: the first pertained to the damage caused by pine needles falling onto Ms Aaron's property, and the second was about the potential risk of injury due to the tree's condition. Notably, Ms Aaron did not seek compensation as part of her application.

After examining the tree and considering the nature of the residential area, the court determined that the Living Bushland Conservation Zone was residential in character, thereby granting the court jurisdiction. The court found that the tree was in good health and there was no immediate or foreseeable risk of injury from the tree. Furthermore, the court applied the urban tree dispute principle from Barker v Kyriakides [2007] NSWLEC 292, which stated that maintenance activities such as cleaning gutters were part of living with trees in an urban environment. The court concluded that the fall of pine needles did not constitute an extraordinary circumstance warranting intervention under the Act, and thus, Ms Aaron's application was dismissed.

Orders