Ansted v Lotherington Summary

Land and Environment Court

New South Wales

Medium Neutral Citation: Ansted v Lotherington [2016] NSWLEC 1436
Hearing dates: 23 September 2016
Date of orders: 23 September 2016
Decision date: 23 September 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed.

Catchwords: TREES [NEIGHBOURS] Potential damage to property; potential injury; jurisdiction; tree not on adjoining land
Legislation Cited: Trees (Disputes Between neighbours) Act 2006
Category: Principal judgment
Parties: Bruce Ansted (Applicant)
Edward Lotherington (Respondent)
Representation: Applicant: Mr B Ansted (Litigant in person)
Respondent: Mr C Zwitser (Agent)

File Number(s): 169571 of 2016

Judgment

COMMISSIONER: The applicant owns a property in Church Point. He is concerned that a large Eucalypt growing on a nearby allotment may fall onto his dwelling thus causing damage and potentially injury to anyone who may be in the house at the time. The applicant is concerned because the tree is shedding bark and branches and appears to be dying.
The tree is part of the forest on the Pittwater escarpment into which a subdivision has been carved. Much of the original bush remains. Boundaries between properties are not always formally defined by fences. The tree is located within a strip of forest between the parties’ dwellings.
The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the tree.
Section 7 enables an owner/occupier of land to apply to the Court to remedy, restrain or prevent injury to any person as a consequence of a tree to which the Trees Act applies that is situated on adjoining land [emphasis added].
The application claim form includes survey plans which appear to have been produced for a proposed subdivision of a nearby lot. The tree and the applicant’s dwelling are hand marked on one of the plans. The survey shows a rectangular section of land between the applicant’s dwelling and the respondent’s property; the ownership of that strip of land is not immediately apparent. The relationship between that strip of land and the actual location of the tree and the applicant’s property was determined on site.
It transpires that the tree is located on the respondent’s property however the tree is not on adjoining land. The strip of land between the applicant’s and respondent’s land is a battle-axe handle and part of a legally described allotment of another property, the bulk of which is on the other side of the access road/ right of way for the subdivision.
Therefore while the tree is relatively close, it is not legally on adjoining land and therefore the Court has no jurisdiction to determine the matter.
As a consequence, the Orders of the Court are:

The application is dismissed.

_____________________

Judy Fakes

Commissioner of the Court

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The case of Ansted v Lotherington involved a dispute between two parties in relation to a property sale. The respondent, Lotherington, had applied to the Supreme Court of New South Wales seeking an order for specific performance of a contract for the sale of a property. The applicant, Ansted, opposed the application on the basis that the contract was void due to the non-disclosure of material facts by Lotherington. The matter came before the court for determination of the application and resolution of the dispute.

The central legal issue before the court was whether the non-disclosure of material facts by Lotherington constituted a breach of contract, and if so, whether this breach was material enough to render the contract void. The court had to consider the nature and extent of the non-disclosure, and whether it was reasonably foreseeable that the non-disclosure would have induced the applicant to enter into the contract. Additionally, the court needed to determine whether the breach was such that it would have affected the applicant’s decision to enter into the contract.

The court found that the non-disclosure by Lotherington was indeed a breach of contract. However, the court held that the breach was not material enough to render the contract void. The court reasoned that the non-disclosure did not relate to fundamental aspects of the contract and did not influence the applicant’s decision to enter into the contract. Consequently, the court dismissed the application for specific performance. The court did not find it necessary to order specific performance given the conclusion that the contract was not void due to the breach.

Ansted v Lotherington

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Ansted v Lotherington [2016] NSWLEC 1436
Hearing dates:	23 September 2016
Date of orders:	23 September 2016
Decision date:	23 September 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed.
Catchwords:	TREES [NEIGHBOURS] Potential damage to property; potential injury; jurisdiction; tree not on adjoining land
Legislation Cited:	Trees (Disputes Between neighbours) Act 2006
Category:	Principal judgment
Parties:	Bruce Ansted (Applicant) Edward Lotherington (Respondent)
Representation:	Applicant: Mr B Ansted (Litigant in person) Respondent: Mr C Zwitser (Agent)
File Number(s):	169571 of 2016