Ashworth v Joyce - [2007] NSWLEC 357

Land and Environment Court

of New South Wales

CITATION: Ashworth v Joyce [2007] NSWLEC 357

PARTIES:
APPLICANTS
Peter & Meryl Ashworth
RESPONDENTS
John & Susan Joyce

FILE NUMBER(S): 20259 of 2007

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Risk of injury
Dead trees

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 15 June 2007

EX TEMPORE JUDGMENT DATE: 15 June 2007

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENTS
Mrs Joyce for both respondents

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

15 June 2007

07/20259 Peter & Meryl Ashworth v John & Susan Joyce

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site at

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

2. The application is lodged by Mr and Mrs Ashworth of 76 Hudson Parade, Clareville.

3. The application seeks orders for removal of four dead tree trunks located on the adjacent property to the north - which is 74 Hudson Parade. Both properties also have rear frontages to Clareville Beach, a public beach.

4. Mr and Mrs Joyce, the owners of 74 Hudson Parade, do not agree to any order to remove or otherwise further modify the four dead trees.

5. Each of the dead trees has had its entire significant upper storey removed.

6. A copy of a plan in Mr and Mrs Ashworth’s application is appended to and forms part of this decision. That plan numbers each of the trees from T1 to T4 – an identification we adopt.

7. We have been assisted, during the course of this hearing, by evidence and statements given by Mr Paul Shearer, an expert arborist giving evidence on behalf of Mr and Mrs Ashworth, and Mr Kyle Hill, an expert arborist giving evidence on behalf of Mr and Mrs Joyce.

8. We have had the opportunity of inspecting the trees from both levels of the Ashworths’ residence, from the adjacent public beach and from the trafficable roof area of the boatshed on the Joyce’s property.

9. During the course of the proceedings, both Mr Hill and Mr Shearer were invited to express opinions on the two relevant tests which the Court is required to consider pursuant to section 10(2) of the Act – there being no question that any of these trees has, in the past, or is, presently, causing damage to the Ashworths’…

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 Ashworth v Joyce

Details

AGLC: Ashworth v Joyce [2007] NSWLEC 357
Case: [2007] NSWLEC 357
Decision Date: 15 June 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was called upon to adjudicate in a dispute between Peter and Meryl Ashworth, residents of 76 Hudson Parade, Clareville, and John and Susan Joyce, the owners of the adjacent property at 74 Hudson Parade. The Ashworths lodged an application under section 7 of the Trees (Disputes Between Neighbours) Act 2006, seeking orders for the removal of four dead tree trunks located on the Joyce's property. The Joyces opposed the application, asserting that there was no imminent risk of injury or damage to the Ashworths' property. The court was tasked with determining whether the trees posed a risk of injury to persons or damage to property within the near future, as outlined in section 10(2) of the Act.

The court considered the expert evidence provided by arborists Paul Shearer and Kyle Hill, who assessed the likelihood of the trees failing and the potential consequences of such an event. The court examined the trees from various vantage points, including the Ashworths' residence, the adjacent public beach, and the Joyces' boatshed. The court found that, while the trees had been pruned and their upper storeys removed, there was no conclusive evidence that any of the trees would fail within twelve months, thus not satisfying the first test under section 10(2)(a) of the Act. Regarding the risk of injury, the court determined that three of the trees (T2, T3, and T4) would likely fall within the Joyces' property if they failed, thereby not satisfying the second test under section 10(2)(b) of the Act. However, concerning the fourth tree (T1), the court concluded that there was a potential risk to persons on the public beach if it were to fail and fall towards the beach. The court ordered the Joyces to remove the upper portion of T1 to a specified height to mitigate this risk within twenty-eight days.

The court's decision was based on a careful evaluation of the evidence presented and the potential risks posed by the trees. The court determined that, while three of the trees did not pose a significant risk, the upper portion of T1 needed to be removed to prevent potential harm to beachgoers. The court's orders were designed to address the risk of injury without unduly impacting the Joyces' property rights. The final orders were not reproduced in the judgment but were available for inspection at the Court's registry upon payment of the requisite fee. The decision underscored the importance of balancing the rights of neighbouring property owners in disputes concerning trees.

Orders