Ms W Freeman (Applicant) Mr H and Mrs J Dillon (Respondents)
Representation:
Applicant: Ms W Freeman (Litigant in person) Respondents: Mr T Cork (Solicitor) Respondents: McPhee Kelshaw
File Number(s):
20875 of 2011
Judgment
COMMISSIONER: In 2009, Ms Freeman purchased a property towards the western edge of Katoomba. The adjoining property, owned by Mr and Mrs Dillon, contains a number of established trees including a row of several species of conifers along their southern boundary. The Dillons purchased their property in 1990 and have resided there ever since. The majority of the trees were well established when they arrived; it is thought that a number of the trees are at least 43 years old.
Ms Freeman has applied to the Court, under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), for orders against 44 of the trees closest to her northern boundary. The orders sought are (in summary):
(1) Immediate removal of 13 Radiata Pine trees (T1- T13);
(2) Immediate removal of any trees which are already touching or are within centimetres of the wooden fence (T14-T44);
(3) Permission for a root barrier to be put in place along the entire common]boundary and within the applicant's property;
(4) Pruning of live branches and removal of dead wood from 20 trees;
(5) Maintenance to start and continue on 11 recently planted trees;
(6) Checks to be put in place to prevent the future planting on the respondents' land of potentially large-growing trees within 5m of the applicant's property;
(7) Advice to be provided to the respondents with regard to planting future trees in any position along the common boundary;
(8) That the respondents bear the felling and stump removal costs of trees that the Court decides should be removed.
Ms Freeman contends that the following damage has been caused to her property by one or more of the trees:
Cracking and displacement of the concrete driveway/ apron in front of the garage and associated problems with the closing of the garage door [roots];
Cracked and…
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.
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Details
AGLC
Freeman v Dillon [2012] NSWLEC 1057
Case
[2012] NSWLEC 1057
Decision Date
CaseChat Overview and Summary
Freeman and Dillon were neighbours, and the case between them concerned the removal of trees from the boundary of Freeman's property. Freeman claimed that the trees were affecting his view, causing damage to his house, and were hazardous. The dispute was heard in the Supreme Court of New South Wales. Freeman sought an order for the removal of the trees, while Dillon opposed the removal, arguing that the trees were not hazardous and were part of the natural landscape.
The primary legal issues were whether Freeman had a right to remove the trees and whether the removal would cause an unreasonable interference with Dillon's property. The court needed to consider the balance between the rights of the property owners and the potential harm caused by the trees. The court also had to assess whether the removal of the trees would constitute an unreasonable interference with Dillon's property rights.
The court determined that Freeman had a right to remove the trees that were hazardous and affecting his property. The court found that ten of the trees posed a risk to Freeman's house and view, and their removal was justified. However, the court ruled that the remaining trees did not constitute a significant hazard or interference with Dillon's property. The court ordered that Freeman would bear the cost of removing and replacing the ten trees that were hazardous.
Orders
Orders of the court
Application to remove trees upheld in part; applicant to pay the cost of removal and replacement of ten trees