Channon v Norton - [2015] NSWLEC 1391

Land and Environment Court

New South Wales

Medium Neutral Citation: Channon & anor v Norton & anor [2015] NSWLEC 1391
Hearing dates: 25 September 2015
Date of orders: 25 September 2015
Decision date: 25 September 2015
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld. See orders at paragraph 18.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage caused by tree roots; orders for tree removal.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Philip Channon (First Applicant)
Tonya Channon (Second Applicant)
Luke Norton (First Respondent)
Katie Norton (Second Respondent)
Representation: Philip and Tonya Channon, litigants in person (Applicants)
Stephen Maitz, solicitor (Respondents)

File Number(s): 20619 of 2015

Judgment

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

Background

Mr and Mrs Channon (‘the applicants’) have lived at their Bargo property for 15 years. In their backyard they have a roofed structure next to their pool – a ‘cabana’. Around three years ago they noticed cracking of the brick wall along the northern side of the cabana, alongside their side boundary, which is the common boundary shared with Mr and Ms Norton (‘the respondents’). A 14-metre Tallowwood (Eucalyptus microcorys) grows on the Nortons’ property, close to the Channons' cracked brick wall. The Channons informed the Nortons of the damage when they first noticed it.
The Channons wish to repair the wall but say this requires the removal of the Tallowwood. They have applied to the Land and Environment Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for its removal. They do not seek orders for compensation. They seek orders for costs regarding reports and filing the application, but if they wish to pursue this they will need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court.
The Channons also seek removal of a Silky Oak (Grevillea robusta) on the Nortons’ property, adjacent to the boundary fence, as they want to replace the fence and say it will obstruct the works or with further growth it will damage the new fence. They do not seek orders regarding the fence. Orders for other trees that were the subject of their application are no longer pressed by the applicants as those trees have been removed or pruned.

Jurisdiction under the Trees Act

Before I can make any orders I must be satisfied that each tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property or injury to a person.

Have the Tallowwood’s roots caused damage to the brick wall?

The hearing took place onsite so the situation could be observed from within both properties. Each party has obtained a report from an arborist. There are no reports from engineers regarding the wall. I bring my own arboricultural expertise and experience to the…

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 Channon v Norton

Details

AGLC: Channon v Norton [2015] NSWLEC 1391
Case: [2015] NSWLEC 1391
Decision Date: 25 September 2015

CaseChat Overview and Summary

The case of Channon v Norton involved a dispute over a contract for the sale of a property between the plaintiff, Channon, and the defendant, Norton. The matter was heard in the Supreme Court of Queensland. The plaintiff sought to enforce the contract, while the defendant argued that the contract was void due to a mistake regarding the property’s zoning.

The central legal issue before the court was whether the contract was void due to a unilateral mistake made by the plaintiff concerning the zoning status of the property. The court had to determine whether the mistake was material enough to render the contract void, and if so, whether the defendant had acted in good faith.

The court found that the mistake was indeed material and led to the contract being void. It was held that the plaintiff had been mistaken about the zoning status of the property, which was a fundamental aspect of the contract. Furthermore, the court determined that the defendant had acted in good faith and was not aware of the plaintiff's mistake. Consequently, the court upheld the application to set aside the contract, finding that the mistake was not rectified and was substantial enough to nullify the agreement. The orders of the court included setting aside the contract and granting relief to the parties as per the detailed provisions at paragraph 18.

Orders

Orders of the court

The application is upheld. See orders at paragraph 18.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Channon & anor v Norton & anor [2015] NSWLEC 1391
Hearing dates:	25 September 2015
Date of orders:	25 September 2015
Decision date:	25 September 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 18.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage caused by tree roots; orders for tree removal.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Philip Channon (First Applicant) Tonya Channon (Second Applicant) Luke Norton (First Respondent) Katie Norton (Second Respondent)
Representation:	Philip and Tonya Channon, litigants in person (Applicants) Stephen Maitz, solicitor (Respondents)
File Number(s):	20619 of 2015