Jones v Morgan and King - [2010] NSWLEC 1064

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Jones v Morgan and King [2010] NSWLEC 1064

PARTIES:
APPLICANT
William Francis Jones

RESPONDENT
Geoffrey William Morgan and Judith Narelle King

FILE NUMBER(S):
20023 of 2010

CATCHWORDS:
TREES (NEIGHBOURS) :- Removal of trees;
Damage to property;
Injury to persons

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CORAM:
Fakes C

DATES OF HEARING:
17 March 2010

EX TEMPORE DATE:
17 March 2010

LEGAL REPRESENTATIVES

APPLICANT
Mr D Bell (solicitor)
SOLICITOR
Advantage Lawyers

RESPONDENT
Mr G Morgan and Ms J King (litigants in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Fakes C
17 March 2010
20023 of 2010 Jones v Morgan and King
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr Jones of 56 Marine Parade, Nords Wharf against the owners of two trees growing at 54 Marine Parade. The owners of that property are Mr Morgan and Mrs King. The applicant was represented by Mr Bell, solicitor.

The applicant is seeking the removal of the trees as he contends that they have both caused damage to his property and could cause injury to persons. Specifically, the damage said to have been caused, to the applicant’s property, by falling branches is damage to guttering, the wall of the house, ceramic floor tiles and a vehicle. The applicant contends that roots from one of the trees are damaging a retaining wall and concrete slab and could damage the house. The applicant’s concerns about injury arise from his wife being struck by a piece of deadwood as she was hanging out washing and the failure of a large branch from one of the trees onto the respondents’ property during a storm in June 2007 (the storm that grounded the ship the ‘Pasha Bulker’).

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 are likely in the near future to cause, damage to the applicant’s property or are a risk of injury to any person. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. These tests must be applied to each tree.

Tree 1 is a mature Eucalyptus robusta (Swamp Mahogany), Tree 2 is a mature Eucalyptus tereticornis (Forest Red Gum). The trees are highly likely to be remnants of the original forest. According to the respondents, the trees…

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 Jones v Morgan and King

Details

AGLC: Jones v Morgan and King [2010] NSWLEC 1064
Case: [2010] NSWLEC 1064
Decision Date: 17 March 2010

CaseChat Overview and Summary

This case involves an application by William Francis Jones, the applicant, against Geoffrey William Morgan and Judith Narelle King, the respondents, seeking the removal of two trees from the respondents' property, 54 Marine Parade, Nords Wharf. The applicant alleges that the trees have caused damage to his property and pose a risk of injury. The application was heard by Commissioner Fakes in the New South Wales Land and Environment Court on 17 March 2010. The primary legal issue before the Court was whether the trees had caused, were causing, or were likely to cause, damage to the applicant's property or were a risk of injury to any person, as required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.

The Court examined the evidence presented by the parties, including reports from arborists and inspections of the trees. Tree 1, a Swamp Mahogany, and Tree 2, a Forest Red Gum, were both found to have some dead wood and had caused some damage to the applicant's property. However, the Court was not satisfied that the trees were likely to cause damage in the near future or posed a significant risk of injury. The Court considered various factors, such as the trees' contribution to biodiversity, scenic value, and actions taken by the parties. Ultimately, the Court found that the jurisdiction was enlivened for Tree 2, but not for Tree 1. Therefore, the application to remove the trees was refused.

The Court did, however, order the respondents to engage an arborist to remove all dead wood down to 30mm in diameter and all detached branches from both trees. This work was to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. The applicants were to provide all reasonable access, if required, for the safe and efficient carrying out of these orders. The respondents were to give the applicants and any tenants at least 3 working days notice of these works. This work was to be completed within 40 days of the date of these orders, and the removal of dead wood was to be carried out every 2 years within 14 days either side of the anniversary of the first pruning. Orders 2, 3, 4, and 5 applied to the second pruning.

Orders