Agius v Forrester - [2007] NSWLEC 857

Land and Environment Court

of New South Wales

CITATION: Agius v Forrester [2007] NSWLEC 857

PARTIES:
APPLICANT
Maurice Agius
RESPONDENT
Esabel Forrester

FILE NUMBER(S): 20822 of 2007

CORAM: Moore C - Fakes AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128;
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429;
Yang v Scerri [2007] NSWLEC 592;
Barker v Kyriakides [2007] NSWLEC 292;
Wyong Shire Council v Shirt (1980) 146 CLR 40

DATES OF HEARING: 5 December 2007

EX TEMPORE JUDGMENT DATE: 5 December 2007

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

5 December 2007

07/20822 Maurice Agius v Esabel Forrester

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 s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mr Agius of 51 Hunter Street, Riverstone concerning a Lemon Scented Gum (Cymbria citriodoria) (the tree) located on the adjacent property at 42 Railway Terrace. Mrs Forrester owns the property upon which the tree is located.

2 The tree is about 20 m high. Mrs Forrester’s property is separated from Mr Agius’ property by a narrow strip of land which is owned by a property fronting Regent Street. As in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, we have applied the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 to consider properties in such circumstances to be adjoining for the purposes of the Act even though there is a small strip of land separating the two properties in this case.

3 We are obliged to consider Mr Agius’ application against the four tests posed by s 10(2)(a) and (b) of the Act.

4 In the past three years (that is during the period which Mrs Forrester has owned her property), there have been two branches which have fallen from the tree onto Mr Agius’ property or the strip separating the two properties. The branch fall which has given rise to the present application was a branch failure which caused damage to a skylight on the rear garage and storeroom structure on Mr Agius’ property. This took place on 5 July 2007. That incident has given rise to this application for pruning or removal of the tree and a claim by Mr Agius for $320 in compensation for his insurance excess for the 5 July 2007 branch failure together with photocopying and associated photographic costs for this application.

5 We have considered the issue of the removal of the tree or ordering pruning against the third of the tests in s 10(2)(a) of the Act by considering whether it is likely in…

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 Agius v Forrester

Details

AGLC: Agius v Forrester [2007] NSWLEC 857
Case: [2007] NSWLEC 857
Decision Date: 5 December 2007

CaseChat Overview and Summary

The case of Agius v Forrester involved an application by Maurice Agius against Esabel Forrester, heard by the Land and Environment Court of New South Wales. The dispute centred around a Lemon Scented Gum tree located on Forrester’s property, which had fallen branches onto Agius’ property, causing damage. Agius sought either the pruning or removal of the tree and compensation for his insurance excess and related costs. The central legal issues the Court needed to address were whether the tree posed a risk of future damage to Agius' property and, if so, whether it was reasonably foreseeable by Forrester. The Court applied the provisions of the Trees (Disputes Between Neighbours) Act 2006, specifically s 10(2)(a) and (b), which outline the criteria for ordering tree removal or pruning.

The Court meticulously examined the tree and its condition, noting that while a branch had fallen in the past, there were no clear indications of significant risk for future damage. The Court concluded that the tree did not present a foreseeable risk of future damage to Agius’ property within the near future, defined as a period not exceeding 12 months, following the guidance provided in Yang v Scerri. Additionally, the Court held that the deposition of leaves from the tree did not constitute special circumstances warranting interference with the tree, aligning with the principles established in Barker v Kyriakides. Consequently, the application for tree removal or pruning was dismissed. The Court also rejected Agius' claim for compensation, finding that it was not reasonably foreseeable to Forrester that the tree would cause damage, and thus, it was not unreasonable for her to take no action in response to Agius’ concerns.

The Court's decision was final and the application was dismissed in its entirety.

Orders