Awad v Hardie (No. 3)

Case [2012] NSWLEC 1067


Land and Environment Court


New South Wales

Medium Neutral Citation: Awad v Hardie (No. 3) [2012] NSWLEC 1067
Hearing dates:8 March 2012
Decision date: 08 March 2012
Jurisdiction:Class 2
Before: Galwey AC
Decision:

The application is dismissed in its entirety.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; no changed circumstances; structural engineer's report; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Awad v Hardie [2010] NSWLEC 1213
Awad v Hardie (No 2) [2010] NSWLEC 1258
Hinde v Anderson and anor [2009] NSWLEC 1148
Category:Principal judgment
Parties:

Fay Awad (Applicant)

Lilian Frances Hardie (Respondent)
Representation:

Fay Awad (Applicant in person)

Donna Hardie (Agent for the Respondent)
File Number(s):21176 of 2011

Judgment

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

  1. ACTING COMMISSIONER: In September 2010 this Court gave a decision regarding a Camphor Laurel tree in Kogarah. In Awad v Hardie (No 2) [2010] NSWLEC 1258, Senior Commissioner Moore and myself (Acting Commissioner Galwey) found that there was no evidence that tree roots had caused damage to Ms Awad's dwelling. We also concluded that if gutters were blocked by leaves, leading to water damage to the dwelling, such damage could have been avoided through reasonable maintenance. Similarly, we concluded that any risk of injury from fallen leaves and other small debris from the tree could be avoided through reasonable garden maintenance. The application was dismissed.

  1. The decision concluded at [15] with the following note:

"However, we observe, in conclusion, that, in the case of Hinde v Anderson and anor [2009] NSWLEC 1148, the Court dealt with the question as to what might provide a basis of some future application if circumstances concerning the tree were to change and a proper basis for a further application based on that change has been demonstrated to the Court. The circumstances of the principles discussed in Hinde v Anderson also apply in these circumstances."
  1. A full reading of Hinde v Anderson makes it clear that a new application may be made to the Court regarding a tree that was the subject of an earlier application under the Act, provided that there are changes to the circumstances concerning the tree.

  1. Ms Awad has made a new application with regard to the same Camphor Laurel tree on the basis that it has caused damage to her property and is likely to cause injury. I must determine if there have been any changes to circumstances regarding the tree and its possible contribution to damage or risk of injury.

The application

  1. Ms Awad's current application, made under the Trees (Disputes Between Neighbours) Act 2006, concerns the same Camphor Laurel tree and the same damage to her dwelling as did her previous application. She seeks the removal of the tree. In fact, the proposed orders in the application are for the removal of the tree by Kogarah Council, at the respondent's expense. A further order is sought for…

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AGLC
Awad v Hardie (No. 3) [2012] NSWLEC 1067
Case
[2012] NSWLEC 1067
Decision Date

CaseChat Overview and Summary

Awad and Hardie came before the court in an ongoing dispute, the specifics of which are not detailed in the text. The nature of the legal battle between these parties remains unspecified, as are the particulars of the case. What is known is that the court was asked to make a decision on an application filed by one party against the other. The application in question is not described, leaving the specifics of the legal action unclear.

The legal issues before the court were not explicitly stated, but they revolved around the application filed by one party against the other. The court had to determine whether the application met the necessary legal criteria and if it was appropriate for the court to grant the relief sought by the applicant.

The court dismissed the application in its entirety. The reasoning behind this decision is not detailed in the text, leaving the grounds for the dismissal unclear. The court's decision was final, and no further action could be taken on the application.

The final orders of the court were that the application is dismissed in its entirety. The specific implications of this decision are not detailed, leaving the consequences of the dismissal unclear.

Orders

Orders of the court

The application is dismissed in its entirety.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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