Breen v Caronna (No 2) - [2008] NSWLEC 1424

Land and Environment Court

of New South Wales

CITATION: Breen & Anor v Caronna & Anor (No 2) [2008] NSWLEC 1424

PARTIES:
APPLICANTS
Murray Breen and Helen Breen
RESPONDENTS
Vince Caronna and Maria Caronna

FILE NUMBER(S): 20684 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: Discretion - Trees (Neighbours) :-
Proposed consent orders
Consideration of merits of proposed orders
Proposed orders modified

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Breen & Anor v Caronna & Anor [2008] NSWLEC 293

DATES OF HEARING: 25 September and 20 October 2008

EX TEMPORE JUDGMENT DATE: 20 October 2008

LEGAL REPRESENTATIVES:
APPLICANTS
Mr J Trebeck, barrister
RESPONDENTS
Mr D Legg, solicitor
Burridge & Legg

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

20 October 2008

20684 of 2008 Breen & Anor v Caronna & Anor

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 is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry 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

1 COMMISSIONERS: Mr and Mrs Breen made an application to the Court on 14 July 2008 seeking the removal of three trees located on their neighbours' property at 6 Aranda Drive, Frenchs Forest.

2 The three trees located on the neighbouring property, owned by Mr and Mrs Carrona, from the rear of the property toward the front, are a Coastal Redwood, a Golden Cypress and a Mexican Pine (as noted on the attached diagram).

3 After the lodgement of the application, discussions took place between the legal representatives of the parties and it was proposed, at the first hearing on site on 25 September, that the Court agree to consent orders which had been settled between the parties. These proposed orders involved removal of all three trees and the payment of compensation from the Caronnas to the Breens for the damage to the Breens’ driveway.

4 During the course of that view, we indicated that there were a range of matters pursuant to ss 9 and 12 of the Trees (Disputes Between Neighbours) Act 2006 and jurisdictional questions pursuant to s 10 of the Act which we were obliged to consider and that it was not an automatic requirement that we give effect to the consent agreement reached between the parties.

5 As a consequence of that; subsequent procedural discussions and a series of rulings made by Commissioner Moore at a mention on 26 September, the matter was referred to the duty judge for consideration of a Notice of Motion by the Breens seeking to remove the matter from us and…

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 Breen v Caronna (No 2)

Details

AGLC: Breen v Caronna (No 2) [2008] NSWLEC 1424
Case: [2008] NSWLEC 1424
Decision Date: 20 October 2008

CaseChat Overview and Summary

Murray and Helen Breen applied to the Land and Environment Court of New South Wales for the removal of three trees on their neighbour's property at 6 Aranda Drive, Frenchs Forest. The trees in question were a Coastal Redwood, a Golden Cypress, and a Mexican Pine. The application sought to address the damage caused to the Breens' driveway by the roots of these trees. After discussions between the parties' legal representatives, consent orders were proposed, which included the removal of all three trees and compensation from the Caronnas to the Breens for the driveway damage.

The court needed to determine whether to approve the consent orders proposed by the parties. The court had to consider the statutory provisions of the Trees (Disputes Between Neighbours) Act 2006, including the discretion to be exercised under s 9, and the jurisdictional tests under s 10(2)(a) of the Act. The court also needed to consider the appropriateness of the proposed orders, including the potential for replanting under s 9(j) of the Act, and whether the Mexican Pine should be removed based on the damage to the Breens' driveway.

The court conducted an on-site inspection and reviewed the documentary evidence, which led them to conclude that the Coastal Redwood and Golden Cypress were indeed causing damage to the Breens' driveway. The court found that the jurisdictional tests were met for these two trees, and it was appropriate to exercise their discretion in favour of their removal. However, the court had concerns about the evidence regarding the Mexican Pine and its contribution to the driveway damage. After further discussions, the parties agreed that the Mexican Pine would not be removed, and instead, compensatory plantings would be made. The court also addressed the issue of access for the removal of the Coastal Redwood and Golden Cypress and required that the Breens be given reasonable notice, access at a reasonable time, and the opportunity to supervise the access. The court approved the amended consent orders as appropriate.

The court made orders for the removal of the Coastal Redwood and Golden Cypress, with compensatory plantings for the Mexican Pine, and maintained the compensation arrangements as originally proposed. The court also included an order for access to permit the removal of the Coastal Redwood and Golden Cypress under specified conditions.

Orders