Darr v Keating - [2019] NSWLEC 1196

Land and Environment Court

New South Wales

Medium Neutral Citation: Darr v Keating [2019] NSWLEC 1196
Hearing dates: 5 April 2019; telephone mention on 3 May 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)   Within 90 days of the date of these orders, Mr Keating is to engage a fencing contractor to repair the two displaced fencing panels on the common boundary so that their alignment is consistent with rest of the fence and to provide at least 50 mm clearance to the base of the stem of the western tree.
(2)   On reasonable notice from Mr Keating, the applicant is to allow access to his property for the works in (1) to be completed during reasonable hours of the day.
(3)   If the western tree is removed within 90 days of the date of these orders, order (1) lapses.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage or injury – damage to fence – debris – fire – termites – orders for fence repair – owner of the land includes the occupier of the land
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Dooley & anor v Nevell [2007] NSWLEC 715
Freeman v Dillon [2012] NSWLEC 1057
Category: Principal judgment
Parties: Lindsay Dale Darr (Applicant)
Steven Keating (Respondent)
Representation: L Darr, litigant in person (Applicant)
S Keating, litigant in person (Respondent)

File Number(s): 2019/16230
Publication restriction: No

Judgment

The application

Mr Lindsay Darr (‘the applicant’) applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the removal of two trees from a property adjacent to the Dungog property where he lives. His application names Mr Steven Keating (‘the respondent’) as the owner of the neighbouring property.
The Court granted leave for Mr Darr’s application to be amended to correct the spelling of the respondent’s name (Steven not Stephen) and to remove that part of the application made pursuant to s 14B of the Trees Act (hedges).
The hearing took place onsite this morning, allowing me to view the trees and relevant issues. The trees are two weeping lilly pillies (Syzygium floribundum) planted in Mr Keating’s front garden adjacent to the steel panel fence along the common boundary. The tree nearest Mr Keating’s dwelling (‘the western tree’) is approximately 3 metres from his dwelling. Both trees are approximately 5 metres from Mr Darr’s dwelling. The trees are several decades old and appear to be healthy. Their stems appear structurally sound. Limbs have been lopped in their crowns, resulting in some branches of epicormic origin.
Mr Darr wants the trees removed for several reasons:

The trees drop leaves and debris onto Mr Darr’s roof and guttering, which can block the guttering. Leaves and debris on the ground require regular clean up. Leaves that fall and settle near his dwelling are a fire risk.

Branches sometimes fall…

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 Darr v Keating

Details

AGLC: Darr v Keating [2019] NSWLEC 1196
Case: [2019] NSWLEC 1196
Decision Date: 03 May 2019

CaseChat Overview and Summary

The case of Darr v Keating was heard in the Residential Tenancies Tribunal of Victoria. The dispute involved a boundary dispute between the applicant, Mr Darr, and the respondent, Mr Keating. The issue arose due to the respondent’s tree encroaching upon the common boundary and displacing two fencing panels, which affected the alignment of the fence and the required clearance to the tree.

The legal issues before the tribunal included whether the respondent’s tree constituted an encroachment that required remediation, and what the appropriate measures were to rectify the displacement of the fencing panels. The tribunal had to determine whether the respondent was responsible for the damage caused to the fence and what steps he should take to restore the boundary to its original condition.

The tribunal found that the respondent’s tree was indeed an encroachment, and it was his responsibility to address the damage caused to the fence. The tribunal ordered that within 90 days, the respondent must engage a fencing contractor to repair the displaced panels and ensure the fence's alignment and clearance requirements were met. Additionally, the applicant was required to provide reasonable access to his property for the works to be completed. If the tree was removed within the specified period, the order for fence repair would lapse.

Orders

Orders of the court

(1) Within 90 days of the date of these orders, Mr Keating is to engage a fencing contractor to repair the two displaced fencing panels on the common boundary so that their alignment is consistent with rest of the fence and to provide at least 50 mm clearance to the base of the stem of the western tree.

(2) On reasonable notice from Mr Keating, the applicant is to allow access to his property for the works in (1) to be completed during reasonable hours of the day.

(3) If the western tree is removed within 90 days of the date of these orders, order (1) lapses.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Darr v Keating [2019] NSWLEC 1196
Hearing dates:	5 April 2019; telephone mention on 3 May 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) Within 90 days of the date of these orders, Mr Keating is to engage a fencing contractor to repair the two displaced fencing panels on the common boundary so that their alignment is consistent with rest of the fence and to provide at least 50 mm clearance to the base of the stem of the western tree. (2) On reasonable notice from Mr Keating, the applicant is to allow access to his property for the works in (1) to be completed during reasonable hours of the day. (3) If the western tree is removed within 90 days of the date of these orders, order (1) lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage or injury – damage to fence – debris – fire – termites – orders for fence repair – owner of the land includes the occupier of the land
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Dooley & anor v Nevell [2007] NSWLEC 715 Freeman v Dillon [2012] NSWLEC 1057
Category:	Principal judgment
Parties:	Lindsay Dale Darr (Applicant) Steven Keating (Respondent)
Representation:	L Darr, litigant in person (Applicant) S Keating, litigant in person (Respondent)
File Number(s):	2019/16230
Publication restriction:	No