Jantti v Cormie - [2008] NSWLEC 1290

Land and Environment Court

of New South Wales

CITATION: Jantti v Cormie [2008] NSWLEC 1290

PARTIES:
APPLICANTS
Eila & Toivo Jantti
RESPONDENT
Lola Cormie

FILE NUMBER(S): 20265 of 2008

CORAM: Moore C - Fakes AC

KEY ISSUES: Jurisdiction - Trees (Neighbours) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke (2008) NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Tuft v Piddington [2008] NSWLEC 1249
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 1 July 2008

EX TEMPORE JUDGMENT DATE: 1 July 2008

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

1 July 2008

08/20265 Eila & Toivo Jantti v Lola Cormie

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

1 COMMISSIONERS: On the downhill side of 231 Veron Road at Umina Beach, a large Lilli Pilly tree is growing adjacent to the property’s brick retaining wall (and in the vicinity of an angle of the wall). The Janttis are the owners of the uphill property. Ms Cormie is the owner of the property upon which the tree is growing.

2 The Lilli Pilly tree is some 12 to 15 m in height with a canopy spread of some 6 to 8 m. In addition, on the property where the Lilli Pilly tree has been growing for many years, Ms Cormie has also planted three new trees (with a maximum height of about 1.2 m and maximum trunk diameter of about 2.5 cm) along the line of a rock shelf which runs, in broad terms, parallel to the brick retaining wall.

3 The Janttis seek orders for removal of all four trees. Ms Cormie opposes the making of all four orders sought. The basis upon which the Janttis seek the orders, as outlined in their original application, is because of what they consider to be the likely risk of damage to their retaining wall and their stormwater drainage and sewer pipes.

4 It is also clear, from a copy of a letter dated 5 February 2008 sent from the Janttis to Ms Cormie, that there are two other matters of concern to them relating the mature Lilli Pilly tree. The first of these is the tree does not permit sunlight into their house in winter. It is clear their house, having an aspect to the north looking into the foliage of the tree that this is factually correct. The second additional basis raised in the letter is the falling of pollen from this tree during summer months.

5 We have carefully inspected the trees and the retaining wall from the downhill side, on Ms Cormie’s property. The Janttis say that there is no presently visible damage to the retaining wall on their side of the boundary.

6 We are satisfied, from the survey provided by Ms Cormie, that the trees are located on her property…

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 Jantti v Cormie

Details

AGLC: Jantti v Cormie [2008] NSWLEC 1290
Case: [2008] NSWLEC 1290
Decision Date: 1 July 2008

CaseChat Overview and Summary

Eila and Toivo Jantti sought orders for the removal of four trees from their neighbour, Lola Cormie, on the basis of potential damage to their retaining wall and property, as well as concerns about sunlight access and pollen. Cormie opposed the application. The court found that it had jurisdiction to consider the application for three of the trees, but not for the fourth, which was situated close to the Janttis' property but on Cormie's land. The court dismissed the application, finding that there was no likelihood of the trees causing damage to the Janttis' property in the near future and that the Janttis had not provided medical evidence to support their claim that pollen from the trees was impacting their health. The court also found that the Janttis were responsible for maintaining their property to deal with any issues arising from the trees.

The key issues in this case were the court's jurisdiction to hear the application and whether the trees posed a risk of damage to the Janttis' property. The court found that it had jurisdiction over three of the trees but not the fourth, which was located on Cormie's land. The court dismissed the application, finding that there was no likelihood of the trees causing damage to the Janttis' property in the near future. The court also found that the Janttis had not provided medical evidence to support their claim that pollen from the trees was impacting their health. The court held that it was the responsibility of people in urban environments to undertake ordinary prudent maintenance to their property to deal with any issues arising from trees in their neighbourhood. The application was dismissed in its entirety.

Orders