Forner v Walsh - [2009] NSWLEC 1360

Land and Environment Court

of New South Wales

CITATION: Forner v Walsh [2009] NSWLEC 1360

PARTIES:
APPLICANT
Catherine Forner
RESPONDENT
Mark & Michelle Walsh

FILE NUMBER(S): 20623 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- removal or pruning of four trees, risk of damage to property and a risk of injury to persons.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] NSWLEC 152

DATES OF HEARING: 14 October 2009

EX TEMPORE JUDGMENT DATE: 14 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Catherine Forner (litigant in person)
RESPONDENT
Mr D Manca (solicitor)
SOLICITOR
LAS Layers and Consultants

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

14 October 2009

20623 of 2009 Catherine Forner v Mark & Michelle Walsh

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Catherine Forner of 234 Henry Lawson Drive Georges Hall against the owners of four trees growing at 232 Henry Lawson Drive. The owners of that property are Mark and Michelle Walsh. Mr Dion Manca of LAS Lawyers and Consultants represented the respondents at the on-site hearing. The respondents were present at the hearing.

2 The applicant is seeking the removal or pruning of four trees growing on the southern boundary of the respondents’ property. Mrs Forner contends that the trees pose a risk of damage to her property and a risk of injury to persons.

3 The trees subject to this application are Tree 1 – a Eucalyptus tereticornis (Forest Red Gum) the most eastern of the four trees located approximately one metre to the west of a ‘granny flat’ on the respondents’ property; Tree 2 another Forest Red Gum to the west of tree 1 and immediately to the west of a shade structure on the respondents’ property; Tree 3 – an Angophora subvelutina (Broad-leafed Apple) growing immediately to the west of tree 2; and Tree 4 – an 8 m stump of a rough barked eucalypt located at the western end of the property near the river and abutting a deck.

4 In her application, Mrs Forner sought the removal of Tree 1 and the pruning of the remaining three trees. At the on-site hearing she requested that an additional two trees be considered. This was denied as no notice had been given to the respondents or to the Court. She also sought the removal of trees 1, 2 and 4 and the pruning of tree 3. This was allowed as section 9 of the Act enables the Court to make any orders it considers necessary to remedy, restrain or prevent damage to the property, or to prevent injury to any person, with respect to the trees that are subject to the application.

5 The applicant’s concerns are based largely on the failure in April 2009…

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 Forner v Walsh

Details

AGLC: Forner v Walsh [2009] NSWLEC 1360
Case: [2009] NSWLEC 1360
Decision Date: 14 October 2009

CaseChat Overview and Summary

Catherine Forner applied to the Land and Environment Court of New South Wales for an order under section 7 of the Trees (Disputes Between Neighbours) Act 2006, seeking the removal or pruning of four trees on the property of Mark and Michelle Walsh, her neighbours. The applicant alleged that the trees posed a risk of damage to her property and a risk of injury to persons. The trees in question were located on the southern boundary of the Walsh's property and included a Eucalyptus tereticornis, an Angophora subvelutina, and two stumps of eucalypts.

The court had to decide whether the trees had caused, were causing, or were likely to cause damage to the applicant's property or pose a risk of injury to persons. The court considered various factors, including the structural integrity of the trees, the presence of dead wood, and the potential for branch failure. The court also had to weigh the trees' contribution to the local ecosystem, natural landscape, and scenic value, as well as their intrinsic value to public amenity.

After inspecting the trees and considering the evidence presented, the court found that the trees had indeed caused or were likely to cause damage to the applicant's property or pose a risk of injury to persons. The court ordered the removal of dead wood from trees 1, 2, and 3, and directed the Walshes to engage an arborist to test the potential structural defects in trees 1 and 2. The court dismissed the application to remove or prune tree 4, as it was unlikely to cause damage or injury. The matter was set down for a second on-site hearing to review the arborist's report.

The court's decision highlights the importance of considering both the potential risks posed by trees and their contribution to the local environment when resolving disputes between neighbours under the Trees (Disputes Between Neighbours) Act 2006.

Orders