Aguis v Forrester - [2008] NSWLEC 1434

Land and Environment Court

of New South Wales

CITATION: Aguis v Forrester [2008] NSWLEC 1434

PARTIES:
APPLICANT
Maurice Aguis
RESPONDENT
Isabel Forrester

FILE NUMBER(S): 20833 of 2008

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Damage to property, injury to person and pruning of trees

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Aguis v Forrester [2007] NSWLEC 857
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Hornsby Shire Council v Malcolm (1968) 60 LGRA 429
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 16/10/2008

EX TEMPORE JUDGMENT DATE: 16 October 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr M. Aguis, litigant in person
RESPONDENT
Ms I. Forrester, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

16 October 2008

20833 of 2008 Maurice Aguis v Isabel Forrester

JUDGMENT

1 ACTING COMMISSIONER: This application concerns a Lemon Scented Gum tree growing on the property at 42 Railway Terrace, Riverstone. The tree has previously been the subject of an application for pruning or removal and compensation (Aguis v Forrester [2007] NSWLEC 857) and an application for extension of time in which to appeal the decision in that case (Aguis v Forrester [2007] NSWLEC 857). Both those applications were dismissed.

2 Mr Aguis makes this application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 on the basis of new circumstances. Those circumstances are that the tree has dropped a large branch since the on-site hearing and determination of 5 December 2007.

3 He seeks orders from the Court to prevent any more damage to his property, or injury. He is not claiming any compensation.

4 The tree is growing in the north-eastern corner of the backyard of Mrs Forrester’s property at 42 Railway Terrace, Riverstone, about 1.5 m from both the eastern and northern boundaries.

5 Mr Aguis is the owner of 51 Hunter Street, Riverstone. He bought that property as vacant land 20 years ago and constructed his house with extensive brick garage structures in the backyard. His property is separated from Mrs Forrester’s by a narrow strip of land belonging to his neighbour, Mr Pollock who lives to his east in Regent Street. The strip of land is about 2.4 m wide. Mr Aguis has a gate opening onto the land, and says that he has an arrangement with the owner to have some use of the land. As in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, I have applied the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1968) 60 LGRA 429 to consider the properties of Mr Aguis and Mrs Forrester to be adjoining for the purposes of the Act even though there is a small strip of land separating them.

6 At the starting…

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 Aguis v Forrester

Details

AGLC: Aguis v Forrester [2008] NSWLEC 1434
Case: [2008] NSWLEC 1434
Decision Date: 16 October 2008

CaseChat Overview and Summary

In this matter, Maurice Aguis applied to the Land and Environment Court of New South Wales to address concerns about a Lemon Scented Gum tree growing on Isabel Forrester's property at 42 Railway Terrace, Riverstone. The tree has previously been the subject of an application for pruning or removal and compensation, and an application for extension of time in which to appeal the decision in that case. Both those applications were dismissed. Mr Aguis seeks orders from the Court to prevent any more damage to his property, or injury, as the tree has dropped a large branch since the on-site hearing and determination of 5 December 2007. He is not claiming any compensation. The tree is growing in the north-eastern corner of the backyard of Mrs Forrester’s property at 42 Railway Terrace, Riverstone, about 1.5 m from both the eastern and northern boundaries. Mr Aguis is the owner of 51 Hunter Street, Riverstone. He bought that property as vacant land 20 years ago and constructed his house with extensive brick garage structures in the backyard. His property is separated from Mrs Forrester’s by a narrow strip of land belonging to his neighbour, Mr Pollock who lives to his east in Regent Street. The strip of land is about 2.4 m wide.

The court was required to decide whether the tree had caused damage to Mr Aguis' property, whether the tree was likely in the near future to cause damage to Mr Aguis' property, and whether the tree was likely to cause injury to any person. The court also had to consider matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006. The court observed the tree from the ground on both properties and the narrow strip of land, and also with binoculars from the roof terrace of Mr Aguis’ home and from the roadway of Railway Terrace to the south-west and south-east of Mrs Forrester’s property. The court found that the tree had caused damage to Mr Aguis' property and that the tree was likely in the near future to cause damage to Mr Aguis' property and injury to any person. The court also considered the beneficial features of the tree and found that intervention with it was necessary to manage the risk of damage and injury. The court ordered that the northern trunk of the tree, and the two branches in poor condition on the southern trunk, shall be pruned off by 28 February 2009. The cost of the work shall be shared equally by Mr Aguis and Mrs Forrester. The tree pruning shall be done by an arborist with AQF Level 3 qualifications and suitable insurances, in accordance with AS 4373-2007 Pruning of Amenity Trees. The work shall be organised by Mrs Forrester who shall obtain three quotations and give a copy of those to Mr Aguis. She shall choose the cheapest of the quotations unless she has good reason not to do so. The contractor shall invoice Mrs Forrester and Mr Aguis separately, each for half of the quoted cost of the work. All tree debris from the work shall be removed through Mrs Forrester’s property. The contractor shall have access to Mr Aguis’ property and to Mr Pollock’s property for the purpose of the tree pruning and cleaning up work provided that access is on reasonable notice and at reasonable times, and that Mr Aguis and Mr Pollock may supervise that access of their own land.

Orders