Brown & anor v Weaver - [2007] NSWLEC 738

Land and Environment Court

of New South Wales

CITATION: Brown & anor v Weaver [2007] NSWLEC 738

PARTIES:
APPLICANTS
Graham & Noelene Brown
RESPONDENT
Jean Weaver

FILE NUMBER(S): 20728 of 2007

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Location of a tree on a boundary
Consideration of "situated ... principally" in s 4(3)

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 22 October 2007

EX TEMPORE JUDGMENT DATE: 22 October 2007

LEGAL REPRESENTATIVES:
APPLICANTS
Mr K Neville, solicitor
Bradfield Anderson Solicitors
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

22 October 2007

07/20728 Graham & Noelene Brown v Jean Weaver

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: This an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr and Ms Brown of 53A Hewitt Avenue, Wahroonga, concerning a Cypress tree (the tree) with multiple trunks from a common base located on the adjacent property to the north at 51 Hewitt Avenue. Ms Weaver owns this property.

2 We have considered the present state of the tree which has had three substantial trunk elements removed from it following wind damage and cracking in July 2007. We have heard evidence from Mr Dorfer, an arborist on behalf of the Browns, and from Mr Gideon, an officer of Hornsby Council.

3 We are satisfied that the removal of two of the major branches which were removed as noted in (2) was prudent to have been undertaken at the time that it was undertaken. Contractors known as The Tree Masters NSW Pty Limited (Tree Masters), who were engaged by Mr and Ms Brown, removed these branches.

4 We do not consider, from the location of the boundary between the properties, that there would have been any legal basis for the removal of the third of those branches as carried out – which branch was situated, at its junction, entirely on Ms Weaver's property. For lawful removal, this would have necessitated consent from her for access and for removal at the point where removal was undertaken. No such consent was given.

5 The first matter to be considered is the question of the location of the tree. From time to time, applications are made under the Act concerning trees which are located on the boundary between two properties. The Act, in s 7, permits 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 Brown & anor v Weaver

Details

AGLC: Brown & anor v Weaver [2007] NSWLEC 738
Case: [2007] NSWLEC 738
Decision Date: 22 October 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over a case involving Graham and Noelene Brown as applicants and Jean Weaver as the respondent. The dispute centred on a Cypress tree with multiple trunks situated on a boundary between the Browns' and Weaver's properties. The Browns sought an application under the Trees (Disputes Between Neighbours) Act 2006 to address concerns about the tree's condition and its potential impact on their property. The primary legal issues revolved around determining the location of the tree in relation to the property boundary and whether the removal of certain branches was justified.

The Court examined the tree's placement, particularly focusing on the base of its trunk at ground level in relation to the property boundary. Based on evidence from an arborist and an officer of Hornsby Council, the Court concluded that more than 50% of the tree's trunk base was located on Weaver's property, thus situating the tree principally on her land. The Court also assessed the necessity of removing three branches from the tree, finding that two removals were justified due to safety concerns, but the third was not, as it required Weaver's consent and was not related to the immediate safety issues. The Court ordered the complete removal of the tree, noting the agreement between the parties on this matter. The decision addressed the apportionment of costs, selecting a cheaper contractor for the job, and stipulated that work should commence within 28 days of the orders, with the Browns and Weaver sharing the costs equally.

Orders