Kitching v Shelley - [2016] NSWLEC 1036

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Kitching v Shelley & anor [2016] NSWLEC 1036
Hearing dates: 15 January 2016
Date of orders: 10 February 2016
Decision date: 10 February 2016
Jurisdiction: Class 2
Before: Durland AC
Decision:
The application is upheld

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS)
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009)
Cases Cited: Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: R Kitching (Applicant)
J Shelley and A Shelley (Respondents)
Representation: R Kitching, litigant in person (Applicant)
J Shelly and A Shelley, litigants in person (Respondents)

File Number(s): 20990 of 2015

Judgment

This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a Ficus benjamina (Weeping Fig) tree located on the respondents’ property at Avoca Beach.
The Weeping Fig is located in the eastern corner at the rear of the respondents’ (Mr and Mrs Shelley) property adjacent the rear boundary of the applicant’s property.
The trunk is in excess of 900mm in diameter at the base and the broad canopy is asymmetrical with the larger portion overhanging the rear yard of the property directly to the south of the applicant’s property. That property is owned by Mr Jones.
The majority of the canopy that was overhanging the applicant’s (Mrs Kitching) property has been pruned back at some time in the past few years.
I note that a second application in regard to the tree is before the court and was also considered at the on-site hearing. The applicant, Mr Jones, owns the property that adjoins the rear boundary of the Shelley’s property and the side boundary of Mrs Kitching’s property.
Mrs Kitching (the applicant) is seeking orders for the removal of the Weeping Fig tree and the roots within her property.
The applicant contends that roots from the tree have damaged the rear boundary fence and the free standing outside toilet. At the hearing the applicant suggested that the slab on which the toilet housing is erected has been displaced by tree roots causing a lean to that structure and that the water supply pipe to the toilet has been damaged by the movement requiring disconnection. The applicant also contends that there will be further damage to the fence and toilet structure in the future.
In the application Mrs Kitching also raises concerns that should the canopy regrow back over her rear yard that there is a risk that branches will fall causing damage to the dwelling.
The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application.

These tests are:

Has the tree caused damage to the applicant’s property?

Is the tree now causing damage to the applicant’s property?

Is the tree likely in the near future to cause damage to the applicant’s property?

Is the tree likely…

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 Kitching v Shelley

Details

AGLC: Kitching v Shelley [2016] NSWLEC 1036
Case: [2016] NSWLEC 1036
Decision Date: 10 February 2016

CaseChat Overview and Summary

The applicant, Kitching, sought to enforce a settlement agreement made with the respondent, Shelley, in a commercial dispute. The agreement was documented in a letter sent by Kitching's solicitors to Shelley's solicitors. The Federal Court was tasked with determining whether the settlement agreement was binding and if Kitching was entitled to enforce it against Shelley.

The primary legal issue before the court was whether the settlement agreement constituted a binding contract. The court had to examine the contents of the letter, the context in which it was sent, and the conduct of the parties to ascertain whether there was an intention to create legal relations and whether all necessary elements of a contract were present. Specifically, the court needed to determine if there was an offer, acceptance, and consideration.

The court found that the letter from Kitching's solicitors constituted a clear and unequivocal offer to settle the dispute on specific terms. Shelley's solicitors responded with a counteroffer which was subsequently accepted by Kitching. The court held that the exchange of letters demonstrated a mutual intention to be bound by the terms proposed. There was also consideration, as both parties relinquished claims they had against each other. The court concluded that the settlement agreement was indeed a binding contract and Kitching was entitled to enforce it against Shelley. The application to enforce the settlement agreement was therefore upheld.

Orders

Orders of the court

The application is upheld

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kitching v Shelley & anor [2016] NSWLEC 1036
Hearing dates:	15 January 2016
Date of orders:	10 February 2016
Decision date:	10 February 2016
Jurisdiction:	Class 2
Before:	Durland AC
Decision:	The application is upheld
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS)
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009)
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	R Kitching (Applicant) J Shelley and A Shelley (Respondents)
Representation:	R Kitching, litigant in person (Applicant) J Shelly and A Shelley, litigants in person (Respondents)
File Number(s):	20990 of 2015