Benedetti v Seldon - [2009] NSWLEC 1019

Land and Environment Court

of New South Wales

CITATION: Benedetti v Seldon & anor [2009] NSWLEC 1019

PARTIES:
APPLICANT
M Benedetti
RESPONDENTS
P & T Seldon

FILE NUMBER(S): 21088 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :-
Trees on boundary

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Brown & anor v Weaver [2007] NSWLEC 738

DATES OF HEARING: 21 January 2009

EX TEMPORE JUDGMENT DATE: 21 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ms W Cannon, agent
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

21 January 2009

21088 of 2008 M Benedetti v P & T Seldon

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

1 COMMISSIONERS: In this matter, when we arrived at the site, it appeared to us that each of the two trees which are subject of the application were located in the vicinity of the boundary between the applicant’s property and the respondents’ property.

2 Near these two trees, there are two elements of boundary fencing. There is a very dilapidated (and almost entirely fallen over) short section of single railing fixed to posts closer to the street and in the immediate vicinity of the smaller of the two trees. Because of its state, this fence provided us with no assistance in considering where might be the boundary between the two properties.

3 There is, however, from the front setback of the applicant’s building through to or substantially toward the rear of her property, a Colorbond fence which we have been advised by the respondents was erected some 18 months or so ago and was erected, to the best of their knowledge and belief, on the common boundary between the two properties. We explained, to the respondents and to the representative of the applicant, that we proposed to have regard to a notionally extended line of that fence – assuming that a minor bowing at approximately one third of its length had been straightened – to endeavour to determine whether or not we could be satisfied that either or both of the trees was principally located on the respondents’ property (as required by s 4(3) of the Act).

4 Having considered the smaller of the two trees (that is the tree further into the property to the east of the front boundary), we are satisfied that all or nearly all of that tree is probably located on the applicant’s property. We do not, however, need to determine this as a position on the jurisdictional issue. We do, however, need to make a jurisdictional determination and that which we make is that we cannot be satisfied that that tree is located wholly or principally on the respondents’ property.

5 With respect to the more substantial tree closer to the front property boundary, we have endeavoured (and have explained this to the applicant’s representative and to the respondents) to assess where a…

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 Benedetti v Seldon

Details

AGLC: Benedetti v Seldon [2009] NSWLEC 1019
Case: [2009] NSWLEC 1019
Decision Date: 21 January 2009

CaseChat Overview and Summary

In the matter of Benedetti v Seldon, the applicant sought a determination regarding the location of two trees on the boundary between their property and the respondents' property. The application was dismissed by the Land and Environment Court of New South Wales, with the presiding judges being Commissioner Moore and Acting Commissioner Thyer. The legal issues in this case centred on the interpretation of the Trees (Disputes Between Neighbours) Act 2006 and whether the Court had jurisdiction to determine the location of the trees based on the evidence presented.

The Court was required to decide whether either of the trees in question was located principally on the respondents' property, as stipulated by section 4(3) of the Act. The Court examined the evidence provided, including the state of the boundary fencing and the physical location of the trees. The Court considered the location of the trees in relation to the boundary and concluded that it could not be satisfied that either of the trees was located principally on the respondents' property.

The Court found that, although the smaller tree was further into the applicant's property, it could not definitively determine that it was not located on the respondents' property. In relation to the larger tree, the Court found that approximately 74 inches of the tree's circumference was located on the applicant's property, while the balance was located on the respondents' property. As a result, the Court could not be satisfied that the tree was located principally on the respondents' property.

The Land and Environment Court of New South Wales dismissed the application, finding that it did not have jurisdiction to determine the location of the trees. The Court's decision was based on the evidence presented and the interpretation of the relevant legislation. The Court found that the applicant had not been able to establish that the trees were located principally on the respondents' property, and therefore, the application was dismissed.

Orders