Ekermawi v Bennett - [2009] NSWLEC 1398

Land and Environment Court

of New South Wales

CITATION: Ekermawi v Bennett [2009] NSWLEC 1398

PARTIES:
APPLICANT
Sam Ekermawi
RESPONDENT
Keith and Leanne Bennett

FILE NUMBER(S): 20637 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Removal of tree, compensation, damage to property and risk of injury.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 26 November 2009

EX TEMPORE JUDGMENT DATE: 26 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Sam Ekermawi (litigant in person)
RESPONDENT
Mr P Mitchel (solicitor)
SOLICITOR
Johnsons Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

26 November 2009

20637 of 2009 Sam Ekermawi v Keith and Leanne Bennett
JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Sam Ekermawi of 120 Nuwarra Road Moorebank against the owners of a tree growing at 122 Nuwarra Road. The owners of that property are Leanne and Keith Bennett. Mr Peter Mitchell of Johnsons Solicitors represented the Bennetts. Mr Ian Lacy, Legal Services Co-ordinator and Mr John Nichols, Landscape Assessment Officer, from Liverpool City Council (LCC) were in attendance. The applicant had subpoenaed Mr Nichols to attend the hearing.

2 In the application before the Court, the applicant is seeking the removal of the tree and compensation of a sum of $1667 for damage to a car and between $15,000 and $22,371 for damage to his house. The applicant is seeking these orders as he contends that the tree has caused damage to his property and he is concerned it will continue to do so. He also contends that the tree poses a risk of injury to people.

3 The tree is a mature Eucalyptus sp identified by the respondents’ arborist Michael Clark as E. microcarpa (Grey Box) however this is highly unlikely due to the natural distribution of that species of Eucalypt and the bark type. The tree is most likely a Eucalyptus tereticornis (Forest red Gum) that is native to the area. The tree is growing near the south-eastern corner of the front of the Bennett’s property. A significant part of the root zone is paved with concrete/pebblecrete. Mr Clark estimates the tree to be 21 m tall.

4 At the time of the on site hearing the tree had a healthy canopy and there were no obvious structural defects. There was evidence of recent pruning of quite large branches, especially on the north-western side, that is, over the main driveway. This observation was confirmed by Mrs Bennett who stated that the tree had been pruned some months before. It has generally been pruned in accordance with AS4373:2007 Pruning of Amenity Trees. Liverpool City Council had approved the pruning.

5 Mr Clark prepared the arborist’s report on 9th September 2009 and in his report he concludes that the tree is healthy, has no significant defects and has a safe useful life…

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 Ekermawi v Bennett

Details

AGLC: Ekermawi v Bennett [2009] NSWLEC 1398
Case: [2009] NSWLEC 1398
Decision Date: 26 November 2009

CaseChat Overview and Summary

In the case of Ekermawi v Bennett, Sam Ekermawi sought relief from the Land and Environment Court of New South Wales against Keith and Leanne Bennett, the owners of a tree growing at 122 Nuwarra Road. Ekermawi claimed that the tree, located on the Bennetts' property, had caused damage to his property at 120 Nuwarra Road, including his car and house, and posed a risk of injury. The case hinged on the Trees (Disputes Between Neighbours) Act 2006, which governs disputes over trees between neighbouring properties. The court needed to determine whether the tree posed a sufficient risk to warrant its removal and whether compensation was due for the alleged damage.

The legal issues before the court involved assessing whether the tree had caused, was causing, or was likely to cause damage to Ekermawi's property or pose a risk of injury, as required by section 10(2) of the Act. The court also had to consider other factors under section 12 of the Act, including the tree's value to biodiversity, scenic value, and public amenity. Additionally, the court examined whether other factors, such as the property's paving and water runoff, contributed to the alleged damage.

The court found that while a tree branch had fallen during a storm, the respondents did not own the property at the time, and thus any claim for pre-ownership damage was inadmissible. Regarding the house damage, the court noted that the tree's leaves were not a significant factor, as it was expected for residents to manage such occurrences in urban environments. The court further determined that the tree, being healthy and properly pruned, did not pose a risk of injury. Consequently, the court dismissed the application in its entirety, ruling that the tree did not meet the criteria for removal or compensation under the Act.

Orders