Kilic v Brown - [2010] NSWLEC 1036

Land and Environment Court

of New South Wales

CITATION: Kilic v Brown [2010] NSWLEC 1036

PARTIES:
APPLICANTS
Hulya & Zeki Kilic
RESPONDENT
Anthony Brown

FILE NUMBER(S): 20962 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property
Injury to persons
Noxious weed

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Noxious Weeds Act 1993

CASES CITED: Black v Johnson (No 2) [2007] NSWLEC 513
Dooley & anor v Nevell [2007] NSWLEC 715
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 22/02/10

DATE OF JUDGMENT:
22 February 2010

EX TEMPORE JUDGMENT DATE: 22 February 2010

LEGAL REPRESENTATIVES:
APPLICANTS
Hulya & Zeki Kilic (litigants in person)
RESPONDENT
Anthony Brown (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

22 February 2010

20962 of 2009 Kilic v Brown

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

1 COMMISSIONER

: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Kilic of 10 Undercliffe Road Earlwood against the owners of 3 trees growing at 1A Carboona Avenue Earlwood. The owners of that property are Mr and Mrs Brown.

2 The applicants are seeking the pruning of two trees and the removal of one as they contend that the trees pose a risk of future damage to property and a risk of injury to persons.

3 The trees are a Ligustrum lucidum (Broadleaf Privet), a Quercus robur (English Oak) and a Jacaranda mimosifolia (Jacaranda) growing on the northern boundary of the respondents’ property.

4 The applicants are seeking the removal of the Privet on the basis of it being a ‘noxious’ weed and until recently, it was overhanging the dividing fence into their property. At the time of the on-site hearing, the tree had been severely lopped. According to the applicants Mr Brown had done this some two weeks ago.

5 Under s10(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 persons. In, Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also 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 subject to this application.

6 Whether or not a tree is classified as a noxious weed is not relevant unless it satisfies at least one of the tests under s 10(2). There is no specified relationship between the Noxious…

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 Kilic v Brown

Details

AGLC: Kilic v Brown [2010] NSWLEC 1036
Case: [2010] NSWLEC 1036
Decision Date: 22 February 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with an application by Mr. and Mrs. Kilic against Mr. and Mrs. Brown concerning three trees on the Brown's property. The Kilics, the applicants, sought the removal of one tree and the pruning of two others, alleging that these trees posed a risk of property damage and injury. The trees in question were a Ligustrum lucidum (Broadleaf Privet), a Quercus robur (English Oak), and a Jacaranda mimosifolia (Jacaranda) situated on the northern boundary of the Brown's property. The applicants argued that the Privet should be removed as it was a noxious weed and had been overhanging into their property. The Oak and Jacaranda were sought to be pruned due to concerns about potential damage and injury from falling branches and dead wood.

The primary legal issues before the Court were whether the trees had caused, were causing, or were likely to cause damage to the applicants' property or pose a risk of injury to persons, as required under s10(2) of the Trees (Disputes Between Neighbours) Act 2006. The Court also needed to consider the discretionary factors under s9 of the Act, including the contribution of the trees to biodiversity and scenic value, and whether the applicants should contribute to the cost of pruning. The Court's reasoning hinged on applying the statutory tests for tree-related harm and balancing the applicants' concerns with the potential impact on the trees' contribution to the environment and aesthetics. The Court found that the Privet did not meet the statutory tests, while the Oak and Jacaranda did, albeit marginally, due to the risk of injury from dead wood. Consequently, the Court made orders for the removal of dead wood and pruning of the Oak and Jacaranda, with the applicants contributing to the costs of these works.

In summary, the Court dismissed the application to remove the Privet but upheld the application to prune the Oak and Jacaranda. The Court ordered that an arborist remove dead wood greater than 30mm in diameter from the sections of the Oak and Jacaranda that overhang the applicants' property. The work must be completed within 30 days and in accordance with relevant standards and codes. The applicants must provide access for these works and pay 20% of the cost of the works within 21 days of receiving a tax invoice.

Orders