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Awad v Hardie (No 2)

Awad v Hardie (No 2)

Case [2010] NSWLEC 1258 9 September 2010

Adverse Possession

Easements & Covenants

Unjust Enrichment

Judicial Review

Natural Justice & Procedural Fairness

Property Law

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Land and Environment Court

of New South Wales

CITATION: Awad v Hardie (No 2) [2010] NSWLEC 1258

PARTIES:
APPLICANT
F Awad
RESPONDENT
L Hardie

FILE NUMBER(S): 20160 of 2010

CORAM: Moore SC - Galwey AC

KEY ISSUES: TREES (NEIGHBOURS) :- Tree on boundary - where principally located; Proof of damage

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Awad v Hardie [2010] NSWLEC 1213
Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592
Hinde v Anderson and anor [2009] NSWLEC 1148

DATES OF HEARING: 11 June, 23 July and 9 September 2010

EX TEMPORE JUDGMENT DATE: 9 September 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
GALWEY AC

9 September 2010

20160 of 2010 Awad v Hardie

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

1 This application pursuant to the trees disputes between neighbours act 2006 has an unfortunate history. There have been two previous attendances at the site - on 11 June when the survey information that had been presented by the applicant was shown to be in competently prepared; and, on the second occasion on 23 July, when a further survey that had been prepared by the same surveyor was also shown not to have been prepared in accordance with the directions earlier given by the Court.

2 An interim decision was given on that occasion (see Awad v Hardie [2010] NSWLEC 1213) dealing with the requirements survey information for trees on the boundary in order to establish where the tree is principally located for the purposes of dealing with the jurisdictional question under s 43 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). After the second hearing, the surveyor who had undertaken the earlier two inadequate surveys conducted a further survey that now establishes that 35% of the trunk of the tree at the point where it enters the ground is located on the applicant's property and 65% of the trunk of the tree at the point where it enters the ground is located on the respondent’s property. Copies of the three surveys, from earliest to latest, are reproduced below:

3 The final of these three surveys established we have jurisdiction to move on and consider the other necessarily pre-requisite jurisdictional questions that arise under s 10(2) of the Act. Those are matters of whether - first; the tree has caused; second, the tree is causing; or, third, the tree is likely in the near future to cause damage to the applicant’s property; and, finally, whether it is a likelihood of injury to any person. Unless one of those facts is established, the Court has no jurisdiction to make any orders with respect to the tree.

4 In this case, the applicant presses that all four of the jurisdictional tests under s 10(2) are satisfied. First she says that the tree…

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 (No 2)

Details

AGLC: Awad v Hardie (No 2) [2010] NSWLEC 1258
Case: [2010] NSWLEC 1258
Decision Date: 9 September 2010

CaseChat Overview and Summary

This case involves an application by the applicant, Mr Awad, under the Trees (Disputes Between Neighbours) Act 2006 to the Land and Environment Court of New South Wales. The applicant sought an order for the removal of a tree located on the boundary between his property and that of the respondent, Ms Hardie. The application had a history of previous hearings where the Court had found the surveys prepared by the applicant's surveyor to be inadequate. After a third survey was conducted, the Court was able to establish jurisdiction and consider the jurisdictional questions under s 10(2) of the Act.

The key legal issues the Court had to decide were whether the tree had caused, was causing, or was likely to cause damage to the applicant’s property, and whether it posed a risk of injury to any person. The applicant argued that the tree had caused internal damage to his property and that the roots had lifted the concrete path adjoining his residence. The Court inspected the property and found no evidence to support the applicant’s claims. While the applicant also claimed that the tree’s berries posed a risk of injury to young children, the Court found that such issues should be dealt with through ordinary maintenance rather than Court intervention.

The Court considered the jurisdictional tests under s 10(2) of the Act and found that none of them were satisfied. The Court also applied the tree dispute principle established in Barker v Kyriakides, which holds that the benefits of trees in urban areas come with the responsibility for ordinary reasonable maintenance. The Court concluded that any damage to the property was likely due to inadequate maintenance and not the tree itself. Therefore, the Court dismissed the application and did not make any substantive orders. The Court, however, noted that a future application could be made if circumstances concerning the tree were to change.

No specific final orders were made in this case. The Court dismissed the application and observed that any future application would need to be based on a proper demonstration of changed circumstances.

Orders