Ditton v Barker and Martin - [2018] NSWLEC 1455

Land and Environment Court

New South Wales

Medium Neutral Citation: Ditton v Barker and Martin [2018] NSWLEC 1455
Hearing dates: 23 August 2018
Date of orders: 23 August 2018
Decision date: 23 August 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the ten Leyland Cypress trees (five along their front boundary and five along their back boundary) from their property to a height of no more than 50 cm above ground level. Works are to be done in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – Leyland Cypress – obstruction of sunlight – whether a second application can be made – obstruction limits sunlight to windows during winter – orders for tree removal
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Ditton v Barker & anor [2015] NSWLEC 1274
Hinde v Anderson and anor [2009] NSWLEC 1148
Category: Principal judgment
Parties: Sandra Ditton (Applicant)
Ross Barker (First Respondent)
Johna Martin (Second Respondent)
Representation: S Ditton, litigant in person (Applicant)
R Barker and J Martin, litigants in person (Respondents)

File Number(s): 2018/154679
Publication restriction: No

Judgment

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

Background

Sandra Ditton has lived in a residential street of Fishermans Paradise since 2001. To her north, on the neighbouring property owned by Ross Barker and Johna Martin, are two Leyland Cypress windbreaks, one along their eastern front boundary and another along their western back boundary. In each row, five trees are on the respondents’ property, though the rows continue on to the property to their north.
Miss Ditton says the trees in the front row obstruct sunlight during winter to her kitchen and living room window in the morning, and trees in the western row obstruct sunlight to windows of two rooms at the back of her house in the afternoon. In each case, the obstruction lasts for about two hours. She has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the trees to be removed. Miss Ditton’s earlier application, made for the same reasons in 2015, was dismissed by Fakes C on the grounds that there was insufficient evidence to demonstrate a severe obstruction of sunlight: Ditton v Barker & anor [2015] NSWLEC 1274.

Can this second application be made?

In Hinde v Anderson and anor [2009] NSWLEC 1148, Moore SC and Thyer AC determined a Notice of Motion regarding the ability of an applicant to reapply to the Court over the same trees already dealt with in an earlier application. They discussed the changing nature of trees and the environments in which they grow, concluding that it is not uncommon for the circumstances…

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 Ditton v Barker and Martin

Details

AGLC: Ditton v Barker and Martin [2018] NSWLEC 1455
Case: [2018] NSWLEC 1455
Decision Date: 23 August 2018

CaseChat Overview and Summary

Ditton v Barker and Martin was a case involving a dispute between two neighbouring property owners in New South Wales, Australia. The plaintiff, Ditton, alleged that Leyland Cypress trees on the defendant's property, owned by Barker and Martin, were encroaching on her property and causing damage. The case was heard in the Local Court of New South Wales. The primary legal issues in the case were whether the defendants were responsible for the trees and whether they had a duty of care to prevent them from causing damage to the plaintiff's property. The court had to consider the extent of the encroachment, whether the defendants had knowledge of the issue, and whether they had taken reasonable steps to address it. Additionally, the court had to determine if the trees were a nuisance and what remedy, if any, was appropriate.

The court found that the defendants were indeed responsible for the Leyland Cypress trees on their property. It was determined that they had knowledge of the issue and had not taken adequate steps to prevent the trees from causing damage to the plaintiff's property. The court held that the defendants had a duty of care to prevent the trees from encroaching on the plaintiff's property and causing damage. The court further found that the trees constituted a nuisance and ordered the defendants to remove them within 60 days of the date of the orders. The court also stipulated that the removal should be carried out by a suitably qualified arborist and in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry. The trees were to be removed to a height of no more than 50 cm above ground level.

Orders

Orders of the court

(1) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the ten Leyland Cypress trees (five along their front boundary and five along their back boundary) from their property to a height of no more than 50 cm above ground level. Works are to be done in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry.

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:	Ditton v Barker and Martin [2018] NSWLEC 1455
Hearing dates:	23 August 2018
Date of orders:	23 August 2018
Decision date:	23 August 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the ten Leyland Cypress trees (five along their front boundary and five along their back boundary) from their property to a height of no more than 50 cm above ground level. Works are to be done in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – Leyland Cypress – obstruction of sunlight – whether a second application can be made – obstruction limits sunlight to windows during winter – orders for tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Ditton v Barker & anor [2015] NSWLEC 1274 Hinde v Anderson and anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Sandra Ditton (Applicant) Ross Barker (First Respondent) Johna Martin (Second Respondent)
Representation:	S Ditton, litigant in person (Applicant) R Barker and J Martin, litigants in person (Respondents)
File Number(s):	2018/154679
Publication restriction:	No