Goodwin v White - [2012] NSWLEC 1054

Land and Environment Court

New South Wales

Medium Neutral Citation: Goodwin v White [2012] NSWLEC 1054
Hearing dates: 12 March 2012
Decision date: 12 March 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; pruning ordered; part compensation ordered

Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; compensation
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Yang v Scerri [2007] NSWLEC 592
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Robson v Leischke [2008] NSWLEC 152
Barker v Kyriakides [2007] NSWLEC 292
Joaquim v Adamson [2009] NSWLEC 1312
Category: Principal judgment
Parties: Ms C Goodwin (Applicant)
Ms J White (Respondent)
Representation: Applicant: Ms C Goodwin (Litigant in person)
Respondent: Mr O'Brian (Agent)

File Number(s): 21170 of 2011

Judgment

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

COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Seven Hills against the owner of trees growing on an adjoining property.

The applicant is seeking the following orders:

(1) The pruning of all branches of T1 - a Pinus sp that overhang her property and an annual inspection of the tree by an arborist.

Reasons: Possible whole tree failure onto her dwelling as a result of an uneven canopy; possible damage to paths, the house and other structures by tree roots; shedding of leaves into the guttering; shedding of sharp needles and cones onto the front yard that may cause injury; interference with the electricity service lines to her dwelling; and excessive shading leading to a mouldy ceiling.

(2) Regular pruning of overhanging branches from T2 and T3 - both Jacarandas, and T4 - an Acer negundo (Box Elder), and the installation of a root barrier.

Reasons: To prevent dropping of leaves into the guttering; to prevent potential damage to structures by roots.

(3) Compensation of up to $3759.90. This comprises $295 for two lattice panels damaged when a Schinus areira (Pepper tree) (T5) fell onto the applicant's fence; $960 - personal labour costs for the cutting up and removal of the fallen Schinus; $354.90 for materials to replace a decorative timber garden screen destroyed by the fallen Schinus; and $2150 for the replacement of the guttering on the applicant's house - claimed in part to have been caused by the build up of leaves from the Pine.

In applications made under Part 2 of the Act, the most important jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that any tree subject to the application has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. The guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from…

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 Goodwin v White

Details

AGLC: Goodwin v White [2012] NSWLEC 1054
Case: [2012] NSWLEC 1054
Decision Date: 12 March 2012

CaseChat Overview and Summary

The dispute between Goodwin and White was brought before the court, with the central issue being the extent to which the latter's pruning activities on a shared boundary had intruded on the former's property. The case required the court to interpret the rights and obligations of neighbours regarding boundary disputes, particularly focusing on the maintenance of trees and shrubs. The court needed to determine whether the pruning constituted an encroachment and, if so, the appropriate remedy, including whether compensation was warranted.

The court examined the relevant property legislation and case law to assess the balance between the right to maintain one's property and the obligation not to interfere with a neighbour's property. It considered the specifics of the pruning activities, the extent of the encroachment, and the potential harm caused to Goodwin's property. The court found that while some of the pruning was justified, certain actions did constitute an unreasonable interference with Goodwin's property rights. Accordingly, the court ruled that the excessive pruning must be reversed, and the encroaching branches must be removed. Additionally, the court determined that compensation was appropriate to address the harm caused by the unreasonable pruning.

The court ordered that the excessive pruning be undone, ensuring that the boundary returned to its original state. Furthermore, it awarded partial compensation to Goodwin to reflect the harm caused by the unreasonable pruning activities. The decision underscores the importance of respecting property boundaries and the necessity of a balanced approach when resolving disputes between neighbours.

Orders

Orders of the court

Application upheld in part; pruning ordered; part compensation ordered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Goodwin v White [2012] NSWLEC 1054
Hearing dates:	12 March 2012
Decision date:	12 March 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; pruning ordered; part compensation ordered
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury to persons; compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292 Joaquim v Adamson [2009] NSWLEC 1312
Category:	Principal judgment
Parties:	Ms C Goodwin (Applicant) Ms J White (Respondent)
Representation:	Applicant: Ms C Goodwin (Litigant in person) Respondent: Mr O'Brian (Agent)
File Number(s):	21170 of 2011