Awad v Hardie - [2010] NSWLEC 1213

Land and Environment Court

of New South Wales

CITATION: Awad v Hardie [2010] NSWLEC 1213
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
F Awad
RESPONDENT
Ms L Hardie

FILE NUMBER(S): 20160 of 2010

CORAM: Moore SC

KEY ISSUES: EVIDENCE - TREES (NEIGHBOURS) :- inadequate survey; failure to comply with direction for survey of location of a trree on boundary; failure of expert to comply with directions for expert evidence; necessity to know proportions of tree on each property at point where trunk enters the ground for the purposes of determining upon which property the tree is "principally" situated as required by s 4(3) of the Trees (Disputes Between Neighbours) Act 2006

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006, s 4(3)
Uniform Civil Procedure Rules 2005, Part 31 r 27; Sch 7

DATES OF HEARING: 11 June and 23 July

EX TEMPORE JUDGMENT DATE: 23 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Mir, agent
RESPONDENT
Ms D-M Hardie, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

23 July 2010

10/20160 Awad v Hardie

JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: In this matter, directions were given on 23 April 2010 for Ms Awad to have a survey undertaken of the location of the tree, a Camphor Laurel, that is on the boundary between Ms Awad’s property and Ms Hardie’s property. The survey was to be undertaken in order to determine which of the properties was the property upon which the tree was principally situated as required by s 4(3) of the Trees Act. The survey that was provided in response to that direction indicated, in the survey report, that that survey had been taken in a point significantly above ground level rather than at ground level. On 11 June when the first site inspection was undertaken by me and Acting Commissioner Galwey, we pointed out the deficiency in the survey and granted an adjournment until a second hearing to permit a new survey to be undertaken at ground level.

2 On 15 June, I wrote to Mr Mir, who is the agent for Ms Awad in these proceedings, giving a direction that a further survey be undertaken to determine the proportion of the tree at the point where its trunk enters the ground that is located on Ms Awad’s side of the fence and the proportion of the tree where the trunk enters the ground that is located on Ms Hardie’s side of the fence. That letter indicated that Acting Commissioner Galwey and I appreciated that there appeared to be differing ground levels around the base of the tree (particularly in the south-east corner on Mrs Hardie’s property). Nonetheless, we drew Mr Mir’s attention to the principle that had been applied by the Court that, for boundary trees, the property upon which the tree is principally located…

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 Awad v Hardie

Details

AGLC: Awad v Hardie [2010] NSWLEC 1213
Case: [2010] NSWLEC 1213
Decision Date: 23 July 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Awad v Hardie was heard by Senior Commissioner Tim Moore. The applicant, Ms Awad, sought to determine the location of a boundary tree between her property and that of the respondent, Ms Hardie. The dispute centred on the necessity to know the proportions of the tree on each property at the point where the trunk enters the ground, as required by section 4(3) of the Trees (Disputes Between Neighbours) Act 2006, to ascertain on which property the tree is principally situated.

The primary legal issue was whether the evidence provided by the surveyor, Mr Mansell, was sufficient to determine the location of the tree. The court had previously directed that a survey be undertaken at ground level to determine the proportions of the tree on each property, but the survey provided was flawed. Mr Mansell's first survey had been taken significantly above ground level, and his second survey, despite an adjournment to correct this, was also inadequate as it did not measure the tree at ground level and did not acknowledge the obligations under the Uniform Civil Procedure Rules. Mr Mansell had measured the tree by running a metal tape around it and made estimations based on this, rather than accurately measuring at ground level and excluding indentations and leaf litter.

The court rejected Mr Mansell's second survey report due to its inadequacies and the failure to comply with the court's directions. As a result, the court could not be satisfied that the tree was principally located on Ms Hardie's property. The court granted a further adjournment to allow Mr Mansell to conduct a proper survey as originally directed. This decision underscores the importance of adhering to court directions and providing accurate and compliant evidence in tree dispute cases under the Trees (Disputes Between Neighbours) Act 2006.

Orders