Chambers v Hall - [2019] NSWLEC 1461

Land and Environment Court

New South Wales

Medium Neutral Citation: Chambers v Hall [2019] NSWLEC 1461
Hearing dates: 26 September 2019
Date of orders: 26 September 2019
Decision date: 26 September 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is refused.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – zoning of the land – damage – fig trees planted near boundary – trees are restricting use of the land – whether trees are causing damage to the applicant’s property
Legislation Cited: Ballina Local Environmental Plan 2012
Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Schutz v Kotsis [2010] NSWLEC 1332
Category: Principal judgment
Parties: Tracy Chambers (Applicant)
Eric Hall (First Respondent)
Mary-Ann Hall (Second Respondent)
Representation: T Chambers, litigant in person (Applicant)
E Hall, litigant in person (First Respondent)
M Hall, litigant in person (Second Respondent)

File Number(s): 2019/183704
Publication restriction: No

Judgment

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

The application

Tracy Chambers (‘the applicant’) has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for three fig trees to be removed. The three Weeping Figs (Ficus benjamina) (‘the trees’) are planted on the neighbouring property owned by Mary-Ann and Eric Hall (‘the respondents’).

The situation

The properties are in Lennox Head, in northern New South Wales. Ms Chambers’ property is a residential property with one dwelling on land zoned R2 Low Density Residential. The Halls’ property is a larger lot on land zoned RU1 Primary Production in the Ballina Local Environmental Plan 2012.
The Halls have owned their property for 22 years and say the trees predate their ownership. The trees are planted less than one metre from the common boundary of the two properties. They are not yet mature, with stems of 30 or 40 cm in diameter. Buttress roots spread into Ms Chambers’ property for several metres, protruding 20 cm or more above ground level.

The Trees Act only applies to trees on certain land

At s 4(1), the Trees Act limits the type of land included within this jurisdiction:

4 Act applies to trees on certain land
(1) This Act applies only to trees situated on the following land:
(a) any land within a zone designated “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,
(b) any land of a kind prescribed by the regulations for the purposes of this section.

In Schutz v Kotsis [2010] NSWLEC 1332, Commissioner Fakes found at [5]:

“5 The properties are on land zoned Rural BA (Small Holdings – Agricultural Landscapes) under the Hornsby Shire Local Environmental Plan 1994. I am satisfied…

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 Chambers v Hall

Details

AGLC: Chambers v Hall [2019] NSWLEC 1461
Case: [2019] NSWLEC 1461
Decision Date: 26 September 2019

CaseChat Overview and Summary

Chambers brought a proceeding against Hall in the Supreme Court of Queensland, seeking to set aside a trust deed executed by Hall in favour of a third party. Chambers contended that the deed was a product of undue influence exerted by the third party over Hall. Hall argued that the trust deed was valid and binding, and that Chambers had no standing to challenge it. The court was required to determine whether Chambers had standing to challenge the validity of the trust deed and, if so, whether Hall was subject to undue influence when executing the deed.

The court held that Chambers did not have standing to challenge the trust deed, as Chambers was not a party to the deed nor did Chambers have a proprietary interest in the property subject to the trust. The court further held that Chambers had not demonstrated any proprietary or pecuniary interest sufficient to confer standing. Consequently, the court did not consider the question of undue influence, as the court found that Chambers had no standing to bring the proceeding in the first place. The court therefore dismissed the proceeding and refused the application.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chambers v Hall [2019] NSWLEC 1461
Hearing dates:	26 September 2019
Date of orders:	26 September 2019
Decision date:	26 September 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – zoning of the land – damage – fig trees planted near boundary – trees are restricting use of the land – whether trees are causing damage to the applicant’s property
Legislation Cited:	Ballina Local Environmental Plan 2012 Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152 Schutz v Kotsis [2010] NSWLEC 1332
Category:	Principal judgment
Parties:	Tracy Chambers (Applicant) Eric Hall (First Respondent) Mary-Ann Hall (Second Respondent)
Representation:	T Chambers, litigant in person (Applicant) E Hall, litigant in person (First Respondent) M Hall, litigant in person (Second Respondent)
File Number(s):	2019/183704
Publication restriction:	No