Black v Johnson

[2007] NSWLEC 359

Land and Environment Court

of New South Wales

CITATION:

Black v Johnson [2007] NSWLEC 359

PARTIES:

APPLICANT
Paul Black

RESPONDENT
Terence Johnson

INTERVENOR
Lake Macquarie City Council

FILE NUMBER(S):

20268 of 2007

CORAM:

Moore C - Thyer AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :-
Preliminary hearing

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

15 June 2007

EX TEMPORE JUDGMENT DATE:

15 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENT
No appearance

INTERVENOR
Mr G Long, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

15 June 2007

07/20268 Paul Black v Terence Johnson

JUDGMENT

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

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application is made by Mr Black, a resident of 26A Glover Street Belmont, concerning four trees that are located to the south of his property on 25 Macquarie Street.

3. This hearing has been a preliminary one to determine whether or not, in the view of the Court, any of the four tests posed by s 10(2) of the Act have been satisfied - rather than it being a full hearing on the merits of Mr Black's application.

4. Those circumstances have arisen because the owners of the trees have provided material to the Court which satisfied the Court that a two-stage hearing was an appropriate arrangement under the circumstances of the case.

5. We have carefully examined the four trees and we have seen the evidence of a number of broken tiles from the Black’s roof and branches which have detached from the trees during the immediately recent storm activity which has taken place in the Newcastle region.

6. One of these is a branch which has detached from the more south-eastern of the two trunks of the most eastern of the four trees. This is a branch which is approximately 80 to 100 mm in diameter at its former point of attachment to the tree.

7. This branch has fallen onto the Black's property and has damaged some tiles on their roof.

8. We cannot be satisfied that there is no likelihood of further damage in the near future being occasioned to Mr and Mrs Black's property. Therefore, we conclude that the third of the tests posed by section 10(2)(a) of the Act is satisfied. As a consequence, the proceedings will resume on site on a date which will be notified to the parties (toward the end of July).

9. The resumed hearing will deal with the questions of what, if anything, should be ordered to be done to any of the trees; the timeframe within which it should be done (if anything is to be done); and who should bear the cost of doing it.

10. On that occasion, we will hear any submissions from the Blacks; from the owners of the trees and from the representatives of the council. We expect such submissions will deal with the question of the likelihood or otherwise of any action being required (including all options not merely for removal of any or all of the trees).

11. Directions setting the date of the resumed hearing and a further timetable for exchange of materials between the parties (including the Council) will be provided to the parties in writing.

Tim Moore

Commissioner of the Court

Acting Commissioner of the Court