Hurditch v Staines - [2008] NSWLEC 1351

Land and Environment Court

of New South Wales

CITATION: Hurditch v Staines [2008] NSWLEC 1351

PARTIES:
APPLICANT
Ray and Rhonda Hurditch
RESPONDENT
Allen and Loretta Staines

FILE NUMBER(S): 20660 of 2008

CORAM: Fakes AC

KEY ISSUES: Trees (Neighbours) :- Removal or pruning of trees, injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Tuft v Piddington [2008] NSWLEC 1249 in [11]

DATES OF HEARING: 22/08/2008

EX TEMPORE JUDGMENT DATE: 22 August 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr and Mrs Hurditch, litigants in person
RESPONDENT
Mr and Mrs Staines, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

22 August 2008

20660 of 2008 Ray and Rhonda Hurditch v Allen and Loretta Staines

JUDGMENT

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

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Hurditch of 36 Rosemont Avenue Kelso concerning trees located on a property owned by Mr and Mrs Staines of 16 Wolery Place Kelso.

2 The trees are two Wattles (a Cootamundra Wattle and a Red-stemmed Wattle) and a Casuarina. They are located in the north-western corner of the respondents’ back yard in close proximity to the boundary fence with the applicants. Due to the elevated nature of the respondents’ property with respect to that of the applicants’, the trees appear taller from the applicants’ property.

3 The applicants are seeking the pruning of the trees to the boundary and their on-going restriction to this point so that the trees do not occupy any of their air-space. They would also be happy if the trees were removed.

4 The application is made with respect to the injury the applicants allege the trees are causing; specifically ‘recurrent allergic rhinitis’ (commonly know as hay fever) and conjunctivitis suffered by their daughter and also allergic reactions suffered by Mr Hurditch. They contend that these symptoms are caused by pollen from the wattles in the respondents’ garden.

5 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or could in the near future, cause damage to property or injury to persons. The issue here is one of injury.

6 In Tuft v Piddington [2008] NSWLEC 1249 in [11], it was accepted that injury encompasses allergic reactions. Therefore the Court has jurisdiction to hear this matter.

7 However, although allergic reactions are enabled to be considered, it is the responsibility of the applicants to provide specific evidence from a suitably qualified specialist medical practitioner that the allergic reactions alleged by the applicants are specifically attributable to the plant species in question. That specialist would probably require qualifications that would allow them membership of a professional association such as the Australasian Society of Clinical Immunology and Allergy.

8 To that end, the standard directions that are sent to all parties in…

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 Hurditch v Staines

Details

AGLC: Hurditch v Staines [2008] NSWLEC 1351
Case: [2008] NSWLEC 1351
Decision Date: 22 August 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with an application by Ray and Rhonda Hurditch against Allen and Loretta Staines, both property owners in Kelso. The Hurditches sought to have trees on the Staines' property pruned or removed due to alleged allergic reactions, including hay fever and conjunctivitis, experienced by their daughter and Mr. Hurditch. They attributed these reactions to the pollen from the wattles and casuarina trees on the Staines' property.

The court was tasked with determining whether the trees had caused, were causing, or could cause injury to the applicants under the Trees (Disputes Between Neighbours) Act 2006. The court noted that while allergic reactions were considered injuries under the act, the applicants had the burden of proving that the specific symptoms were caused by the trees in question. The court referred to a previous case, Tuft v Piddington, which highlighted the necessity of expert medical evidence to establish a link between the trees and the alleged injuries. The applicants provided some medical evidence but failed to present specific evidence from a suitably qualified specialist that directly linked the allergic reactions to the trees.

The court also considered the scenic and public amenity value of the trees, the presence of other potential allergens, and the timing of the applicants' move to the area relative to the age of the trees. Ultimately, the court found that the applicants had not provided sufficient evidence to meet the required standard of proof. Consequently, the court dismissed the application, ruling that the applicants had not demonstrated that the trees were the cause of their alleged injuries.

The court's decision underscored the importance of specific, expert evidence in establishing causation in such disputes. The dismissal of the application reflects the rigorous standards required for establishing injury claims under the Trees (Disputes Between Neighbours) Act.

Orders