Hinde v Anderson (No 2) - [2009] NSWLEC 1258

Land and Environment Court

of New South Wales

CITATION: Hinde v Anderson and anor (No 2) [2009] NSWLEC 1258

PARTIES:
APPLICANT
J Hinde
RESPONDENTS
L & S Anderson

FILE NUMBER(S): 20167 of 2009

CORAM: Moore SC - Thyer AC

KEY ISSUES: JURISDICTION - TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Hinde v Anderson [2007] NSWLEC 847
Hinde v Anderson and anor [2009] NSWLEC 1148
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 21 July 2009

EX TEMPORE JUDGMENT DATE: 21 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Lancaster, barrister
INSRTUCTED BY
Deacons
RESPONDENTS
Mr P Murray, solicitor
Tress Cox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
THYER AC

21 July 2009

20167 of 2009 Hinde v Anderson

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

1 COMMISSIONERS: On 18 December 2007, Tour C and Fakes AC gave a decision concerning a Chinese Elm tree, the location and nature of the tree and the two properties involved in those proceedings and again in these proceedings are described in their judgement (see Hinde v Anderson [2007] NSWLEC 847) and we do not propose to repeat them for the purposes of this decision.

2 A fresh application has been made by the applicant in the earlier proceedings to have the Court consider further whether or not there should be some intervention with or removal of the Chinese Elm.

3 As a preliminary issue in the second application, a decision was given by us on the question of whether the doctrine of res judicata applied (see Hinde v Anderson and anor [2009] NSWLEC 1148). The result of that decision was our finding that a second application was competent but that the success of any second (or indeed any subsequent) application concerning a tree that had been the subject of an earlier hearing needed to be based on changes in circumstances since the first decision was made. Those changes in circumstances then needed to be tested against the four jurisdictional questions posed by section 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), namely:

Has the tree caused damage to the applicant’s property?
Is the tree currently causing damage to the applicant’s property?
Is the tree likely in the near future to cause damage to the applicant’s property? or
Is the tree a risk of injury to any person?

4 In the present proceedings, the applicant asks us to accept that the first of the jurisdictional pre-requisites in section 10(2)(a) is met – namely that the tree has caused, since the earlier decision by our colleagues, additional damage to her property. That damage is damage to a ridge cap second from the gable-end at the western end of the main portion of the house, where there has been an element of the ridge capping broken in January…

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 Hinde v Anderson (No 2)

Details

AGLC: Hinde v Anderson (No 2) [2009] NSWLEC 1258
Case: [2009] NSWLEC 1258
Decision Date: 21 July 2009

CaseChat Overview and Summary

The applicant, Ms Hinde, sought to have the Land and Environment Court of New South Wales consider whether there should be further intervention with or removal of a Chinese Elm tree located on the property of the respondents, L & S Anderson. The Court was required to decide whether the tree had caused additional damage to Ms Hinde's property since the previous decision, and whether the tree currently or in the near future posed a risk of damage to her property or injury to any person. The decision also addressed whether the doctrine of res judicata applied to preclude a second application.

The Court found that while there was evidence of damage to the ridge cap of Ms Hinde's house, the evidence did not conclusively demonstrate that the damage was caused by a branch of the Chinese Elm. The Court also noted that there was no evidence presented that the tree currently posed a risk of injury to any person. However, the Court was open to considering further evidence on whether the tree was likely to cause damage to Ms Hinde's property in the near future, with the understanding that the near future generally meant within 12 months of the hearing. Ultimately, Ms Hinde chose not to present any evidence in support of her application, and the application was dismissed.

Orders