Forner v Walsh (N0 2) - [2010] NSWLEC 1002

Land and Environment Court

of New South Wales

CITATION: Forner v Walsh (N0 2) [2010] NSWLEC 1002

PARTIES:
APPLICANT
Catherine Forner
RESPONDENTS
Mark and Michelle Walsh

FILE NUMBER(S): 20623 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Forner v Walsh [2009] NSWLEC 1360
Hinde v Anderson and anor [2009] NSWLEC 1148
Hinde v Anderson and anor (No 2) [2009] NSWLEC 1258
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 4 January 2010

DATE OF JUDGMENT:
4 January 2010

EX TEMPORE JUDGMENT DATE: 4 January 2010

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENT
Mr D Manca (Solicitor)
SOLICITOR
LAS Lawyers and Consultants

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

4 January 2010

20623 of 2009 Catherine Forner v Mark and Michelle Walsh (No 2)
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 Mark and Michelle Walsh, the owners of trees growing at 232 Henry Lawson Drive.

2 At the initial on site hearing on 14 October 2009, the trees subject to this application were viewed and a judgement and orders given by me. Forner v Walsh [2009] NSWLEC 1360 should be referred to for details on each of the trees. This judgement relates to orders and directions given at that hearing and re-heard on site on 4^th January 2010.

3 The applicant was concerned that four trees growing on the respondents’ property posed a risk of damage to her property and a risk of injury to persons and sought the removal or pruning of the trees. Mrs Forner’s concerns were largely based on the failure of a branch in April 2009 from one of the trees onto the Walsh’s property after strong winds.

4 In the October judgement, orders were made for the respondents to engage and pay for an AQF level 3 arborist to remove dead wood down to a minimum diameter of 30 mm from three of the trees.

5 At the second on-site hearing on 4^th January 2010 it was observed that some dead wood had been removed as ordered but some remained in the branches overhanging the applicant’s property. It was stated at the hearing that the arborist engaged by the respondents was unable or reluctant to access the remaining dead wood. In my opinion, that dead wood should be accessible to a competent climber with the appropriate tools.

6 At the initial hearing there was insufficient detail on the risk of harm posed by structural defects observed in two of the trees (Trees 1 and 2). Subsequent directions were given for the respondents to engage an AQF level 5 arborist to undertake testing with a Resistograph. The directions detailed the scope of the investigations and the information required in the report. A copy of the report was to be filed with 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 Forner v Walsh (N0 2)

Details

AGLC: Forner v Walsh (N0 2) [2010] NSWLEC 1002
Case: [2010] NSWLEC 1002
Decision Date: 4 January 2010

CaseChat Overview and Summary

In the matter of Forner v Walsh (No 2), Catherine Forner, the applicant, sought relief from the Land and Environment Court of New South Wales against Mark and Michelle Walsh, the respondents, regarding trees growing on their property at 232 Henry Lawson Drive, Georges Hall. The applicant was concerned that the trees posed a risk of damage to her property and a risk of injury to persons. The dispute centred on the necessity for the removal or pruning of the trees. The primary legal issues involved determining whether the trees had caused, were causing, or were likely to cause damage to the applicant's property, or posed a risk of injury to persons, within the meaning of section 10(2) of the Trees (Disputes Between Neighbours) Act 2006.

The Court, presided over by Fakes C, examined the evidence and reports provided by arborists, including those from Mr Laurie Dorfer and Mr Ken Cantor, as well as the re-filed report from Mr Michael Clark. The Court considered the findings from aerial inspections and Resistograph testing, which indicated that while some trees had cavities and structural defects, the overall risk of failure and injury was low. However, one branch of Tree 1 posed a potential risk due to its location and the extent of its cavity. The Court held that the jurisdictional criteria under section 10(2) were satisfied, thereby permitting it to make orders concerning the trees.

The Court issued orders requiring the respondents to engage an arborist to remove dead wood and a specific branch from Trees 1 and 2, in accordance with specified safety standards. The work was to be completed within 60 days, with the applicant to be given notice of the works and provided with reasonable access. The Court emphasised that further applications could be made if circumstances changed, provided they met the jurisdictional criteria.

Orders