INTERVENOR Mr G Long, solicitor Lake Macquarie City Council
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.
The consequence of the Court’s decision in this application will be the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 after the respondent is provided with an opportunity to respond to the proposed orders. These orders will not be reproduced as part of this decision but a copy the Court’s Orders will be able to be obtained from the Court’s registry, after they have been finalised, upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at
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. The trees are all Spotted Gums (Cymbria maculata).
3. On 15 Jun 2007 we undertook a preliminary hearing to determine whether or not, in our view, any of the four tests posed by s 10(2) of the Act had been satisfied.
4. We did this because we had been provided with material both by Mr Johnson and on Mr Johnson’s behalf which caused us to consider that a two-stage hearing was appropriate. On that day, we gave an extemporaneous decision (see Black v Johnson [2007] NSWLEC 359) during which we recorded, at paras (5) to (7), that:
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.
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.
This branch has fallen onto the Black's property and has damaged some tiles on…
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.
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Details
AGLC
Black v Johnson (No 2) [2007] NSWLEC 513
Case
[2007] NSWLEC 513
Decision Date
CaseChat Overview and Summary
In Black v Johnson (No 2), the applicant, Paul Black, sought an order for the removal of four trees from the property of the respondent, Terence Johnson. These trees, situated on the boundary line between the properties, had caused damage to Mr Black's residence. The case was heard by the Land and Environment Court of New South Wales. The central issue before the court was whether the four trees should be removed, and if so, who should bear the responsibility for the removal and associated costs. This decision followed an earlier case between the same parties, Black v Johnson [2007] NSWLEC 359, which had determined that one of the trees had caused damage to Mr Black's property and needed to be removed.
The court examined the evidence presented, including the damage to Mr Black's roof caused by a detached branch from one of the trees. The court found that the first of the provisions of s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 had been satisfied, warranting the removal of that particular tree. However, for the other three trees, the court could not find sufficient evidence to support removal based on the Act, as the branches that had fallen were removed by Mr Black himself. The court also considered broader principles regarding tree disputes, particularly the relevance of the tree's existence before the construction of the residence.
The court decided that the design of Mr Black's residence did not absolve him of the responsibility for the removal of the tree that was deemed necessary. The court proposed to order Mr Johnson to remove the specified tree and set a timeframe for compliance, while also considering the respondent's personal circumstances in determining the extension of the compliance period. The court's decision was delivered extemporaneously and was revised and edited prior to publication. Formal orders pursuant to s 9 of the Act would be made after Mr Johnson had an opportunity to respond to the proposed orders.