Abdishou v Khoury - [2010] NSWLEC 1268

Land and Environment Court

of New South Wales

CITATION: Abdishou v Khoury [2010] NSWLEC 1268

PARTIES:
APPLICANT
Mr Y Abdishou
RESPONDENTS
Mr T Khoury
Mrs D Khoury

FILE NUMBER(S): 20572 of 2010

CORAM: Fakes C - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- damage to property, dropping of leaves

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 30/09/2010

DATE OF JUDGMENT:
30 September 2010

EX TEMPORE JUDGMENT DATE: 30 September 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr Y Abdishou [litigant in person]
RESPONDENTS
Mr and Mrs Khoury [litigants in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C
Hewett AC

30 September 2010

20572 of 2010 Abdishou v Khoury

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

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Edensor Park against the owners of trees growing on an adjoining property.

2 The applicant is seeking the Court to order the regular pruning back to the fence line or beyond of two trees that overhang his property. The trees are a Schinus areira (Pepper Tree) and a Eucalyptus moluccana (Grey Box).

3 The applicant is seeking these orders as he contends that:

leaves and other material falling from the trees create a mess on a newly installed concrete apron abutting the western boundary of the applicant’s property,
as a result of the leaf drop, particularly from the Pepper Tree, the concreter was unable to completely seal part of the slab,
there may be potential damage from the roots of these trees to a drain,
leaves of the Grey Gum block the gutters necessitating regular clearing, and
whilst not raised in the application, parts of the trees may fall onto the applicant’s property and cause injury to someone.

4 With respect to the drain, it was determined at the on-site hearing that this was located on adjoining properties and not on the applicant’s property. Therefore it is beyond the jurisdiction of the Court to determine anything regarding the drain as s 7 of the Act applies to ‘property on the land’, that is, the applicant’s land.

5 The trees were inspected from both properties. The Pepper Tree was planted by the respondents about 23 years ago. The trunk is approximately 3m from the dividing fence between the two properties. A portion of the tree overhangs the applicant’s property by several metres. It is a healthy tree with no obvious structural defects. The portion that overhangs has no dead wood and appears structurally sound.

6 We observed some leaves and other material from this tree on the concrete slab beneath the tree. We noted some areas where the sealant was patchy but there was no material damage to the slab in these areas. We saw no…

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 Abdishou v Khoury

Details

AGLC: Abdishou v Khoury [2010] NSWLEC 1268
Case: [2010] NSWLEC 1268
Decision Date: 30 September 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Mr Y Abdishou, the owner of a property in Edensor Park, applied against Mr and Mrs T Khoury, the owners of trees growing on an adjoining property. The applicant sought orders for the regular pruning back to the fence line or beyond of two trees that overhang his property, namely a Schinus areira (Pepper Tree) and a Eucalyptus moluccana (Grey Box). The applicant argued that the trees were causing damage to his property by dropping leaves and other material, blocking the gutters, and potentially damaging a drain and causing injury to someone if parts of the trees were to fall onto his property. The court was required to determine whether the trees had caused, were causing, or were likely to cause damage to the applicant's property or injury to any person, as required by section 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The court found that the Pepper Tree had not caused any damage to the applicant's property and that the dropping of leaves and other material onto the property did not constitute damage within the meaning of the Act. However, the court found that the portion of the Grey Gum that overhangs the applicant's property contains dead wood that, when it fails, could cause injury. Therefore, the court ordered the respondents to engage and pay for an arborist to remove deadwood down to 30mm in diameter from the Grey Gum, limited to the portion of the tree that overhangs the applicant's property to a distance of 2m within the respondents' property. The work must be carried out in accordance with AS4373:2007 and the WorkCover NSW Code of Practice for the Amenity Tree Industry, and the applicant must be given at least two working days notice of the commencement of the works. The works are to be completed within 60 days of the date of the orders.

Orders