Barbour v Stillianesis - [2010] NSWLEC 1120

Land and Environment Court

of New South Wales

CITATION: Barbour & anor v Stillianesis [2010] NSWLEC 1120

PARTIES:
APPLICANT
George Barbour
Suk-Kyoung Lee
RESPONDENT
Con Stillianesis

FILE NUMBER(S): 20202 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property
Repair of pathway ordered

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 20 May 2010

DATE OF JUDGMENT:
20 May 2010

EX TEMPORE JUDGMENT DATE: 20 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
George Barbour [litigant in person]
Suk-Kyoung Lee [litigant in person]
RESPONDENT
Con Stillianesis [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

20 May 2010

20202 of 2010 Barbour & anor v Stillianesis

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the owners of a property in Gipps Street Concord against the owner of two trees growing at the rear of a property in Loftus Street Concord.

2 The applicants are seeking the removal of the two trees and their roots as they contend that the roots of one of the trees has caused damage to a pathway and a fence and that the other may cause damage in the future.

3 They also contend that the damage to the pathway is such that it poses a risk of injury to people, particularly children who use the pathway daily.

4 The applicants are seeking compensation for the removal and replacement of the pathway.

5 The respondent does not want the trees removed as he values the trees for the shade and screening they provide.

6 The trees are a Schinus areira (Peppercorn) (Tree 1) and a Toxicodendron succedaneum (Rhus) (Tree 2). The trees are growing along the respondent’s rear fence that is also the applicants’ side boundary fence.

7 The Peppercorn is a well-established mature tree of considerable diameter. It is growing in the north-eastern corner of the respondent’s property within 1 m of two adjoining boundary fences. It is in normal health and condition for a tree of its age. It has a slight lean to the south due to the shading effect of the applicants’ house to its north. Some of the canopy overhangs the applicants’ house.

8 Tree 2 is closer to the north-western corner. This tree is in average condition. Some of the canopy overhangs the applicants’ property and some branches are relatively close to the house. This tree has not caused any damage to date but the applicants are concerned about the future damage that this tree may cause.

9 The damage said to have been caused by Tree 1 is the lifting of a concrete footpath and its displacement away from the eastern side wall of the applicants’ house. The footpath runs between the house and the…

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 Barbour v Stillianesis

Details

AGLC: Barbour v Stillianesis [2010] NSWLEC 1120
Case: [2010] NSWLEC 1120
Decision Date: 20 May 2010

CaseChat Overview and Summary

The case of Barbour & Anor v Stillianesis involved an application brought by the applicants, George Barbour and Suk-Kyoung Lee, against the respondent, Con Stillianesis, under section 7 of the Trees (Disputes Between Neighbours) Act 2006. The applicants, owners of a property in Gipps Street, sought the removal of two trees—a Schinus areira (Peppercorn) and a Toxicodendron succedaneum (Rhus)—growing on the respondent's property in Loftus Street, alleging that the roots of these trees had caused damage to a pathway and a fence on their property. They further argued that the damage to the pathway posed a risk of injury, especially to children using the pathway. The applicants sought compensation for the removal and replacement of the pathway. The respondent, however, opposed the removal of the trees, valuing them for the shade and privacy they provided.

The primary legal issues that the Land and Environment Court of New South Wales had to address were whether the trees had caused, were causing, or were likely to cause damage to the applicants' property or injury to any person, and if so, whether the seriousness of the damage or risk warranted the intervention of the Court. The Court applied the statutory tests under section 10(2) of the Act, which necessitates satisfaction of the aforementioned conditions before an order can be made. The Court also considered discretionary questions under section 9 of the Act, and relevant factors under section 12 of the Act, including the contribution of the trees to biodiversity, scenic value, and public amenity.

The Court found that the Rhus tree had not caused, was not causing, or likely to cause damage or injury, and dismissed this part of the application. Regarding the Peppercorn tree, while acknowledging that a root likely caused some minor damage to the pathway and the step, the Court deemed the remedy sought by the applicants—removal of the tree—disproportionate to the minor damage. The Court ordered the respondent to sever the root causing damage, infill the gap between the path and the applicants' house, repair the crack in the step, and provide notice for these works. The Court balanced the applicants' concerns with the respondent's enjoyment of the trees, ultimately deciding against removal but mandating actions to mitigate further damage.

Orders