Hodgson v Woodward - [2009] NSWLEC 1283

Land and Environment Court

of New South Wales

CITATION: Hodgson v Woodward [2009] NSWLEC 1283

PARTIES:
APPLICANT
D Hodgson
RESPONDENTS
M & L Woodward

FILE NUMBER(S): 20282 of 2009

CORAM: Moore SC - Pearson C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 21 July 2009

EX TEMPORE JUDGMENT DATE: 21 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Muriniti, solicitor
L C Muriniti & Associates
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
PEARSON C
THYER AC

21 July 2009

20282 of 2009 Hodgson v Woodward

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

1 COMMISSIONERS: This is an application made concerning three trees on a property owned by Mr and Mrs Woodward at Allambie Heights. To the direct west of the property is located a child-care centre operated by the applicant and a number of others associated with his family company. The three trees that are the subject of the application are Chinese Tallow trees.

2 There are two bases for the application. The first is that the leaves from the trees (these are deciduous trees) and, perhaps to a lesser extent, the fruits from the trees fall into a box gutter located at the connection of a new carport structure and sleeping room (for children attending the centre) and an old garage structure that has been converted to form part of the child-care facility. The second is the leaves and fruit from the trees blow onto the applicant's property and constitute a risk of injury to children who attend the child-care centre.

3 Mr Hodgson’s evidence, during the course of the site inspection, was that, during the fruiting season of the trees and the period after that when the fruit from the trees fall from the trees on to his property (a period of some five months in the year he said), every morning he is obliged to clean up the leaves and fruits that fall from the trees. We have had the advantage of seeing one of the fruits that falls from the trees – it is some 3 or 4 mm in diameter.

4 We have in evidence before us two reports prepared by an arborist, Mr Scales. The first is a report dated 20 February 2004 and the later report is dated 29 June 2009.

5 Relevant to one of the issues in the proceedings is the question of whether or not we should have regard to the design of the carport structure in taking account of the gutter blocking and the overflowing water flowing into the cot room in the preschool facility.

6 Mr Scales’ first report (that was written at about the time of the construction of the carport) shows, on page 5, that the first of the Chinese Tallow trees – the one closest to the…

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 Hodgson v Woodward

Details

AGLC: Hodgson v Woodward [2009] NSWLEC 1283
Case: [2009] NSWLEC 1283
Decision Date: 21 July 2009

CaseChat Overview and Summary

The case of Hodgson v Woodward was heard in the Land and Environment Court of New South Wales. The applicant, Hodgson, sought relief regarding three Chinese Tallow trees on the property of the Woodwards, which were causing issues for the child-care centre operated by Hodgson on his adjacent property. The main issues were the blockage of a gutter by leaves and fruits from the trees, which led to water damage, and the risk of injury to children from the poisonous leaves and fruits.

The legal issues before the court were whether the Trees (Disputes Between Neighbours) Act 2006 provided jurisdiction over the claims and, if so, whether it was appropriate to make an order for the removal or interference with the trees. The court found jurisdiction was established as the trees had caused damage to Hodgson's property and there was a risk of injury due to the poisonous nature of the leaves and fruits.

The court reasoned that, although the trees had caused issues, the primary reason for the gutter blockage was the design of the carport structure, which did not take into account the deciduous nature of the trees. Additionally, Hodgson was already undertaking daily maintenance to clean up leaves and fruits, which mitigated the risk of injury to children. The court referred to the principle in Barker v Kyriakides, which states that those who enjoy the benefits of trees should also accept the responsibility for their maintenance. Given these factors, the court decided not to exercise its discretion to order any interference with the trees, dismissing Hodgson's application.

Orders