Inbari &anor v Rankin - [2010] NSWLEC 1236

Land and Environment Court

of New South Wales

CITATION: Inbari &anor v Rankin [2010] NSWLEC 1236

PARTIES:
APPLICANTS
S & R Inbari
RESPONDENT
K Rankin

FILE NUMBER(S): 20398 of 2010

CORAM: Moore SC - Galwey AC

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Civil Procedure Act 2005
Dividing Fences Act 1991

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 20 August 2010

DATE OF JUDGMENT:
25 August 2010

LEGAL REPRESENTATIVES:
APPLICANTS
Mr J Johnson, barrister
RESPONDENTS
Mr P Ludemann, solicitor
Ballidu Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
GALWEY AC

25 August 2010

10/20398 Inbari & anor v Rankin

JUDGMENT

1 THE COMMISSIONERS: This is an application made pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The application seeks an order for the removal of a Liquidambar tree (Liquidambar styraciflua) (the tree) located on the boundary between the two properties in the Sydney suburb of Cremorne. The application also seeks an order for the reinstatement, after the tree is removed, of the dividing fence between the two properties. Although not expressly so put, the application would appear to also contemplate an order pursuant to s 13A of the Dividing Fences Act 1991 for the reinstatement of length of the fence that is not impacted by the tree – this approach confirmed and an offer was made by Mr. Johnson, barrister for Mr and Mrs Inbari, that Mr and Mrs Inbari were prepared to meet half the cost of reinstatement of that portion of the fence that was not affected by the tree.

2 Before considering any of the merits of the application, we note two matters. The first is that the orders set out in the application as being sought by Mr and Mrs Inbari do not involve any order for rectification works or compensation for the cost of rectification of paving on Mr and Mrs Inbari’s property said to be damaged by roots of the tree. Indeed, during the course of submissions, Mr Johnson expressly confirmed that no such compensatory award or order was sought.

3 Second, we observed that the tree is located on the boundary and that no survey has been provided to us to demonstrate what proportion of the trunk, at the point where it enters the ground, is on each of the properties. This knowledge is essential to determine whether or not our jurisdiction is enlivened, as we are required, by s 4(3) of the Trees Act, to be satisfied that the tree is situated principally on Ms Rankin's property rather than on Mr and Mrs Inbari’s property.

4 Despite this lack of certainty, the parties agreed, consistent with the objectives of the Civil Procedure Act 2005 for the just quick and cheap resolution of matters that were in dispute between the parties, that we should undertake a full hearing on the merits and, if we were not minded 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 Inbari &anor v Rankin

Details

AGLC: Inbari &anor v Rankin [2010] NSWLEC 1236
Case: [2010] NSWLEC 1236
Decision Date: 25 August 2010

CaseChat Overview and Summary

Inbari & Anor v Rankin was an application under the Trees (Disputes Between Neighbours) Act 2006 (NSW) brought by the Inbari's against their neighbour, Ms Rankin, seeking the removal of a Liquidambar tree located on the boundary between their properties in Cremorne, Sydney, and the reinstatement of the dividing fence between the two properties. The Inbari's argued that the tree had damaged their property by lifting the paving in the vicinity of their barbecue and outdoor entertaining area and that seed pods falling from the tree constituted a risk of injury to Mr Inbari, who was legally blind. The Land and Environment Court was required to decide whether the tree should be removed, and if so, whether the Inbari's were entitled to an order for the reinstatement of the dividing fence. The Court concluded that while the tree had caused some damage to the Inbari's property and there was a risk of injury to Mr Inbari, the circumstances were not exceptional enough to warrant the removal of the tree. The Court found that the Inbari's could reasonably be expected to maintain their property to mitigate the risks associated with the tree, and that the benefits of the tree, such as providing shade and privacy to Ms Rankin's property and contributing to local birdlife, outweighed the harm caused to the Inbari's property. Accordingly, the application was dismissed, and no order was made for the reinstatement of the dividing fence. The Court's decision was based on a careful consideration of the evidence and the relevant legislation and principles, and it provides useful guidance on the factors to be taken into account when deciding whether to order the removal of a tree in a dispute between neighbours.

Orders