Kent v Karpisek - [2010] NSWLEC 1149

Land and Environment Court

of New South Wales

CITATION: Kent v Karpisek [2010] NSWLEC 1149

PARTIES:
APPLICANT
Dr Peter Kent
RESPONDENT
Mr A Karpisek

FILE NUMBER(S): 20250 of 2010

CORAM: Fakes C - Galwey AC

KEY ISSUES: TREES (NEIGHBOURS) :- Future damage to property
Injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] NSWLEC 152
Dooley & anor v Nevell [2007] NSWLEC 715

DATES OF HEARING: 18/06/2010

DATE OF JUDGMENT:
18 June 2010

EX TEMPORE JUDGMENT DATE: 18 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
Dr P Kent [litigant in person)
RESPONDENT
Mr P Wood, solicitor
Philip R Wood, Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C
Galwey AC

18 June 2010

20250 of 2010 Kent v Karpisek

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

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Burraneer Bay Road Caringbah against the owner of trees growing in a property in Gannons Road Caringbah.

2 The applicant is seeking the removal of all overhanging branches and one of three trunks of a Fig tree and the drilling of a eucalypt to determine the presence or otherwise of termites.

3 The applicant is concerned that branches from the fig that overhang his roof may cause damage to the tiles. He is also concerned that one of the trunks of the fig is causing damage to the dividing fence. He contends that the roots of the tree have displaced the gravel path between the fence and the house and that, in the future, roots may cause damage to the foundations of his house.

4 With respect to the eucalypt, the applicant is concerned that dead branches falling from the tree may cause injury. He is also concerned that the entire tree may fail onto his property. This concern is based on the failure of another eucalypt some 4-5 years ago. This tree fell onto an adjacent tennis court and close to the corner of his town house. The applicant was uncertain as to whether the tree that fell was dead or alive at the time.

5 Each of the trees subject to this application must be considered individually, and an assessment made in accordance with s 10(2) of the Act. This section states that the Court must not make an order unless it is satisfied that any of the trees concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person. As the applicant is concerned about future damage, the Court has regularly referred to the guidance decision given in Yang v Scerri [2007] NSWLEC 592. As a rule of thumb, the near future is a period of 12…

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 Kent v Karpisek

Details

AGLC: Kent v Karpisek [2010] NSWLEC 1149
Case: [2010] NSWLEC 1149
Decision Date: 18 June 2010

CaseChat Overview and Summary

This case involves an application made by Dr Peter Kent, the owner of a property in Burraneer Bay Road Caringbah, against Mr A Karpisek, the owner of trees growing in a property in Gannons Road Caringbah. Dr Kent is seeking the removal of overhanging branches and one of the three trunks of a fig tree, as well as the drilling of a eucalypt to determine the presence of termites. He is concerned that branches from the fig tree overhanging his roof may cause damage to the tiles, and that one of the fig tree trunks is causing damage to the dividing fence. He also contends that the roots of the tree have displaced the gravel path between the fence and the house, and that, in the future, roots may cause damage to the foundations of his house. In relation to the eucalypt, Dr Kent is concerned that dead branches falling from the tree may cause injury, and that the entire tree may fail onto his property.

The legal issues the court was required to decide were whether the trees had caused, were causing, or were likely in the near future to cause damage to Dr Kent’s property, or were likely to cause injury to any person. The court was required to consider the trees individually, and make an assessment in accordance with s 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The court referred to the guidance decision given in Yang v Scerri [2007] NSWLEC 592, which states that as a rule of thumb, the near future is a period of 12 months from the date of the determination.

The court found that the fig tree had not caused damage to Dr Kent’s roof, nor was it likely to cause damage in the near future. The court also found that the fig tree had contributed to the displacement of one of the panels of the fence, but that this was more aesthetic than a matter of being dysfunctional. The court found that the remedy sought by Dr Kent was disproportionate to the damage. The court also found that the eucalypt had not caused damage, nor was it likely to cause damage in the near future, and that the likelihood of the tree causing injury to any person was remote. The court found that it had no jurisdiction over termites or any other creature that may live in or on trees.

In conclusion, the court dismissed the application in its entirety. The orders of the court were that the application to remove the most northerly of the trunks of the fig or any overhanging branches was dismissed, and that the application for the drilling of the eucalypt to determine whether or not termites may be present was dismissed.

Orders