Aubrey v Garside - [2009] NSWLEC 1198

Land and Environment Court

of New South Wales

CITATION: Aubrey v Garside [2009] NSWLEC 1198

PARTIES:
APPLICANT
Aubrey, Elizabeth & Anor
RESPONDENT
Garside, Charles

FILE NUMBER(S): 20157 of 2009

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- injury; damage; bushfire

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Buckingham v Ryder [2007] NSWLEC 458
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280

DATES OF HEARING: 20 May 2009

EX TEMPORE JUDGMENT DATE: 20 May 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Taouk (Solicitor)
SOLICITOR
Giles Payne & Co. Solicitors
RESPONDENT
Mr P Jessup (Solicitor)
SOLICITOR
Jessup and Storm

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

20 May 2009

20157 of 2009

William and Elizabeth Aubrey v Charles Garside

JUDGMENT

1 ACTING COMMISSIONER: Nine trees and an assortment of shrubs (the trees) grow on the western side of 212 Caringbah Road, Caringbah (the property) near the common boundary with the adjoining property to the west. The property is owned by Mr Garside. The trees are located from near the front, northern boundary to about 40 m south. All but the most southern tree are growing below a rock ledge on the property, in an area that has the appearance of a bush garden with remnant native trees, planted rainforest and damp area trees, and various luxuriant and hardy exotic shrubs. This area is not easily accessed from the upper part of the property where Mr Garside’s house is located. The trees and some of the shrubs overhang the adjoining property to the west.

2 Mr and Mrs Aubrey (the Aubreys) are the owners of 214 Caringbah Road, Caringbah, the adjoining property to the west. They live in a quiet cul-de-sac adjacent a bushland park, across the road from Yowie Bay. Theirs is a neat brick and weatherboard home with a spacious covered patio that overlooks the level, well maintained front yard on the northern side of the house. That yard consists of an eastern and western lawn divided by a long, level driveway that is also the pedestrian entry. The eastern lawn contains an attractive group of five Scribbly Gums which have some of their branches interlaced with branches of Mr Garside’s trees. The western lawn contains a grand old Sydney Red Gum. Two very large Gum trees grow on the western side of the house, with large branches overhanging the roof. Mr Aubrey is 85 years old. His daughter and her family live in the house next door on the southern side. His grandchildren often play on the lawns and driveway in his front yard.

3 Mr Aubrey has been making complaints to Sutherland Shire Council about vegetation on Mr Garside’s property for 23 years since 1986. Documents pertaining to the dispute between the neighbours in relation to trees and/or vegetation along the common boundary were obtained from the Council by Mr Aubrey. Those documents made a pile about 1 cm thick, with some pages…

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 Aubrey v Garside

Details

AGLC: Aubrey v Garside [2009] NSWLEC 1198
Case: [2009] NSWLEC 1198
Decision Date: 20 May 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with a dispute between William and Elizabeth Aubrey, the owners of 214 Caringbah Road, Caringbah, and Charles Garside, the owner of 212 Caringbah Road, Caringbah. The Aubreys sought to address issues concerning trees and vegetation growing on Garside's property that they claimed were causing property damage, posing a fire hazard, and obstructing sunlight. The case was brought under the Trees (Disputes Between Neighbours) Act 2006, which mandates that for the Court to make any order regarding a tree, one or more of the specified tests must be satisfied, such as whether the tree has caused, is causing, or is likely to cause damage to the property or injury to a person.

The legal issues in this case centred on whether the trees and vegetation on Garside's property met the criteria under the Act for the Court to intervene and order their removal or pruning. The Court needed to determine if the trees or vegetation were likely to cause damage or injury within the near future. Additionally, the Court had to consider the ecological and scenic value of the trees and whether they contributed to the local ecosystem, landscape, and community.

Acting Commissioner Thyer found that certain trees did meet the criteria for intervention under the Act due to the likelihood of causing damage or injury. For instance, Tree 1, a Scribbly Gum, was found to have dead wood likely to cause injury. Tree 4, a large dead tree, and Tree 6, a Sydney Red Gum, were also found to be likely to fall onto the Aubreys' property. Tree 7, a Grey Gum, and Tree 8, another Grey Gum, were found to have large dead wood overhanging the Aubreys' property, posing a risk of damage. Tree 9, another Scribbly Gum, also had large dead wood overhanging the Aubreys' roof, indicating a likelihood of future damage. Conversely, some trees and shrubs did not meet the criteria for intervention as they were not found to be likely to cause damage or injury.

Regarding the vegetation, the Court determined that the evidence did not support the claim that it constituted a fire hazard. The Aubreys had not provided sufficient evidence to show that a bushfire was imminent, and other authorities had not identified the vegetation as a fire hazard. Consequently, the Court found that the vegetation did not meet the criteria for intervention under the Act.

The Court also noted the ecological and scenic value of the trees, but concluded that these considerations did not override the need to address the risks posed by certain trees and vegetation. The Court made several orders by consent, including the removal or pruning of specific trees by certain deadlines, with costs allocated between the parties. These orders aimed to balance the need for safety and property protection with the preservation of the trees' ecological and scenic contributions.

Orders