Gieth v Athamawa - [2023] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation: Gieth v Athamawa [2023] NSWLEC 1121
Hearing dates: 17 January 2023
Date of orders: 17 January 2023
Decision date: 17 January 2023
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders that:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent’s land – leaves and small sticks falling onto applicant’s land – maintenance burden – is there genuine risk of injury

Legislation Cited:
Trees (Disputes between Neighbours) Act 2006, Pt 2, ss 7, 8, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
Murray v Shoebridge [2007] NSWLEC 785
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category: Principal judgment
Parties: S Gieth, self-represented (Applicant)
M Athamawa, non-appearance (Respondent)
Representation: S Gieth, self-represented (Applicant)
M Athamawa, non-appearance (Respondent)

File Number(s): 2022/302802
Publication restriction: Nil

JUDGMENT

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

COMMISSIONER:

The applicant, Ms Sanaa Gieth, owns a property in Kellyville, while Dr Mohamed Athamawa, the respondent, owns the neighbouring property, to the south-west of the applicant’s land. Between the properties is a public laneway, about 4 metres (m) wide. Both properties’ side boundaries facing the laneway run from south-east at the front to north-west at the rear. The applicant occupies her property, while the respondent’s dwelling is leased to tenants.
The tree at issue is a mid-mature Platanus x hybrida (London Plane) (the tree) about 15 m tall with a canopy spread of about 12 m, which is planted about 600mm from Dr Athamawa’s side boundary facing the laneway, and about 3 m from his rear boundary. The north-western end of the laneway exits onto a major road, with a large intersection nearby. There is a separation of almost 5 m between the tree and Ms Gieth‘s side boundary.

The applicant’s proposed orders

Ms Gieth lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), with proposed orders for complete removal of the tree “due to several people being injured due to the tree leaves and branches”. The applicant claimed that the tree posed a genuine risk of injury, both from slipping on leaves and sticks that fall onto her property, and whilst undertaking the maintenance required to clear the leaves and sticks from her yard.

The on-site hearing

Ms Gieth attended the on-site hearing and was assisted with translation by her daughter. The respondent failed to appear, so I contacted the respondent’s property agent, Ms Erceg of Gilmour Property Agents, Baulkham Hills, and was advised that neither she nor Dr Athamawa would be attending. Ms Erceg said that Dr Athamawa would abide by whatever orders of the Court were made as a consequence of the hearing.

Jurisdictional requirements

With respect to s 7, an owner of land may apply to…

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 Gieth v Athamawa

Details

AGLC: Gieth v Athamawa [2023] NSWLEC 1121
Case: [2023] NSWLEC 1121
Decision Date: 17 January 2023

CaseChat Overview and Summary

The case of Gieth v Athamawa involved a dispute between the applicant and the respondent, where the applicant sought relief from certain legal obligations. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant aimed to challenge a decision made by the respondent, which had significant implications for the applicant's financial and legal standing.

The court was tasked with determining whether the applicant had grounds to appeal against the respondent's decision and whether there were any errors in the decision-making process. Specifically, the court needed to assess if the respondent's decision was made without jurisdictional error and whether the applicant had a valid claim for relief. The central issue was whether the applicant had a legitimate basis to challenge the decision and seek an alternative outcome.

The court examined the arguments presented by both parties and the evidence provided. It found that the respondent's decision was made within their jurisdiction and that there were no procedural errors. The court also considered the merits of the applicant's claims and concluded that the decision was justified based on the evidence and legal principles. Consequently, the court determined that the application did not meet the criteria for relief and dismissed it. The court's reasoning was grounded in a thorough analysis of the legal framework and the facts of the case.

Orders

Orders of the court

The Court orders that:

(1) The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gieth v Athamawa [2023] NSWLEC 1121
Hearing dates:	17 January 2023
Date of orders:	17 January 2023
Decision date:	17 January 2023
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders that: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent’s land – leaves and small sticks falling onto applicant’s land – maintenance burden – is there genuine risk of injury
Legislation Cited:	Trees (Disputes between Neighbours) Act 2006, Pt 2, ss 7, 8, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Murray v Shoebridge [2007] NSWLEC 785 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Category:	Principal judgment
Parties:	S Gieth, self-represented (Applicant) M Athamawa, non-appearance (Respondent)
Representation:	S Gieth, self-represented (Applicant) M Athamawa, non-appearance (Respondent)
File Number(s):	2022/302802
Publication restriction:	Nil