Galloway v Howard - [2009] NSWLEC 1017

Land and Environment Court

of New South Wales

CITATION: Galloway v Howard [2009] NSWLEC 1017

PARTIES:
APPLICANT
Jean Galloway
RESPONDENT
Sandy Howard

FILE NUMBER(S): 20957 of 2008

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- Leighton Green Ledge, Damage to paving, Root barrier

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Osborne v Hook [2008] NSWLEC 1231

DATES OF HEARING: 14/01/2009

EX TEMPORE JUDGMENT DATE: 14 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Jean Galloway, litigant in person
RESPONDENT
Mr C. Xuereb, solicitor
of Charles R Xuereb & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

14 January 2009

20957 of 2008 Jean Galloway v Sandy Howard

JUDGMENT

1 ACTING COMMISSIONER: Mrs Galloway lives at 26A Oakville Road Willoughby. She seeks orders for removal of 14 trees which form a hedge on the adjoining property, and replacement with species more suitable to the location. The trees have been identified as Leighton Green or Naylors Blue Cypress. She also seeks removal of the tree roots from her property and installation of a root barrier, and that the cost of all these works be payed for by the owner of the trees. In addition she seeks compensation for repairs already carried out to her paving, and for proposed repairs to the dividing fence and her paths, pavers and garden edges.

2 The trees are situated in the backyard of 26 Oakville Road, the adjoining property to the east which is owned by Sandy Howard and Lynn McEwan. They were represented at the hearing by the solicitor Mr Charles Xuereb.

3 The trees are growing in a line, with the trunks about 0.4 m on the eastern side of the dividing fence. The parties agree that the dividing fence is on or very close to the common boundary.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

6 I observed numerous shallow trenches that had been dug on Mrs Galloway’s side of the fence. Each trench revealed tree roots. The largest root was about 50 mm diameter,…

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 Galloway v Howard

Details

AGLC: Galloway v Howard [2009] NSWLEC 1017
Case: [2009] NSWLEC 1017
Decision Date: 14 January 2009

CaseChat Overview and Summary

In the case of Galloway v Howard, the applicant, Jean Galloway, sought orders to remove 14 trees that form a hedge on the adjoining property and to replace them with more suitable species. She also requested the removal of tree roots from her property, the installation of a root barrier, and compensation for the cost of these works and repairs to her paving, dividing fence, paths, and garden edges. The trees in question were located on the property owned by Sandy Howard and Lynn McEwan, the respondents. The case was heard in the Land and Environment Court of New South Wales, with Acting Commissioner Thyer presiding.

The primary legal issues the court had to address were whether the trees in question had caused or were likely to cause damage to the applicant's property, and if so, whether the damage or risk was sufficiently serious to warrant intervention by the court. The court also had to determine what orders, if any, should be made regarding the trees and who should bear the cost of any works.

The court found that the three northern trees in the hedge were likely to have caused damage to the block paving near the house and were likely to cause further damage in the near future, thus meeting the first and third tests under the Trees (Disputes Between Neighbours) Act 2006. Additionally, the court found that the third tree was likely to cause damage to the concrete path in the near future, and due to the applicant's age and frequent presence in the garden, it was likely to cause her injury. Consequently, this tree met the third and fourth tests under the Act. The court did not find that the other observed damage was caused by the trees, and therefore, no compensation was awarded for that damage.

Despite the findings that some of the trees met the statutory tests for damage, the parties reached an agreement to avoid orders being applied to the property. The agreement included the removal of the dividing fence, installation of a root barrier, and repair of any damage caused. The applicant agreed to grant access to the property during the works. Consequently, the application was dismissed by consent of the parties.

Orders