Colling v Wilson - [2009] NSWLEC 1061

Land and Environment Court

of New South Wales

CITATION: Colling v Wilson [2009] NSWLEC 1061

PARTIES:
APPLICANTS
Edward and Enid Colling
RESPONDENTS
Robert and Kerry Wilson

FILE NUMBER(S): 21244 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :-
Leighton Green trees
Damage to sewer caused by tree roots

LEGISLATION CITED: Land and Environment Court Act 1979
Trees (Disputes Between Neighbours) Act 2006
Dividing Fences Act 1991

CASES CITED: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128

DATES OF HEARING: 17/02/2009

EX TEMPORE JUDGMENT DATE: 17 February 2009

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

17 February 2009

21244 of 2008 Edward & Enid Colling v Robert & Kerry Wilson

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 orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 .

1 COMMISSIONERS: In this case an application has been made by Mr and Mrs Colling for an order for removal of five Leighton Green tree’s located on the adjacent property. These trees are some 10 to 13 years old and are located toward the rear of the property owned by Mr and Mrs Wilson.

2 The application also seeks compensation for a number of blockage clearances of the sewer pipes on the Collings’ property and seeks an order for replacement of portion of the corrugated fibre cement fence between the two properties. The application also seeks reimbursement for a number of reports and the Court application fee.

3 We turn first to deal with this matter as it is most easily disposed off. Commissioners of the Court are not given delegation by the Chief Judge, pursuant to s 36 of the Land and Environment Court Act 1979, to deal with applications for costs or for the provision of reports and the like falling within the definition of costs. If Mr and Mrs Colling wish to make a separate application to the Court based on the outcome of these proceedings for any costs order that is required to be by Notice of Motion which is heard and determined by a Judge of the Court.

4 We turn next to the question of the fence between the two properties. Mr and Mrs Wilson put in contest the question of the location of the fence. Mr Wilson has provided a survey in the proceedings which includes a notation that there are fencing irregularities in the boundary fence between either the Collings property and the Wilson's property or the Wilson's property and other adjoining properties. This survey is a comparatively recent one (being prepared, it would appear, for the purposes of the sale of the Wilson's property).

5 Mr and Mrs Colling have put in evidence, primarily for the purposes of showing 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 Colling v Wilson

Details

AGLC: Colling v Wilson [2009] NSWLEC 1061
Case: [2009] NSWLEC 1061
Decision Date: 17 February 2009

CaseChat Overview and Summary

The applicants, Edward and Enid Colling, sought orders from the Land and Environment Court of New South Wales against Robert and Kerry Wilson for the removal of trees on the Wilsons' property, compensation for sewer blockages caused by tree roots, and reimbursement for fence repairs and legal costs. The central issues were whether the trees caused damage to the Collings' property and, if so, whether they should be removed or if alternative measures could be taken. The court also considered the applicants' claims for compensation for past sewer blockages, fence repairs, and legal costs.

The Court dismissed the applicants' claims for costs and reports, noting that these could be pursued separately if necessary. Regarding the fence, the court found insufficient evidence to determine its exact location and thus declined to make any orders. The court found that the Wilsons' trees had caused damage to the Collings' sewer system, evidenced by a CCTV inspection. The court decided against ordering tree removal to preserve the aesthetic value for the Wilsons but required the Wilsons to pay $810 for past sewer clearances. The court also ordered the Wilsons to contribute up to $5000 towards the cost of relining or replacing the Collings' sewer pipes if such work is undertaken within a year, with the Wilsons required to provide a forwarding address in case of property sale.

The court concluded with specific orders: the Wilsons must pay $810 for past sewer clearances within 28 days, contribute up to $5000 for sewer repair within a year, and provide a forwarding address for future claims if they sell their property. The claims regarding the fence and certain costs were dismissed.

Orders