Knox v Love (No 2) - [2011] NSWLEC 1277

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Knox v Love (No 2) [2011] NSWLEC 1277
Hearing dates: 16 September 2011
Decision date: 27 September 2011
Jurisdiction: Class 2
Before: Dixon C
Galwey AC
Decision:
1.    The application is upheld in part.
2.    The applicants are to cut and remove a maximum of 6 tree roots within the 13.5m2 paved area, up to a diameter of 100mm including the root that grows beneath the dwelling at the family room door.
3.    Roots are to be cut no more than 200mm from west of the sewer pipe on the applicantsâ€™ property.
4.    The works in orders 2 and 3 are to be done by an arborist with minimum AQF Level 3 and all appropriate insurances within 21 days of the date of these orders.
5.    The respondents are to pay the applicants the sum of $5000 compensation within 21 days of the date of this order.
6.    The applicants are to carry out ongoing pruning, when necessary, to the six roots nominated in order 2 as specified in order 3.

Catchwords: TREES - damage to property; damage to sewers, stormwater drains, paving and walls; quantification of damage
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Hinde v Anderson & Anor [2009] NSWLEC 1148
Knox v Love [2011] NSWLEC 1257
Robson v Leischke [2008] NSWLEC 152; 159 LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties:
Mr A Knox (Applicant)
Ms J Knox (Applicant)
Mr J Love (Respondent)
Ms B Love (Respondent)
Representation:
Applicants in person
Respondents in person

File Number(s): 20275 of 2011

Judgment

This judgment deals with Mr and Mrs Knox's application under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ( the Act ) in respect of an oak tree located on the eastern boundary of their neighbours' land at 40 Greendale Ave, Pymble. They seek removal of the tree and rectification works to their sewer, stormwater pipes, retaining wall, fence and dwelling. They also seek an order that the respondents pay them monetary compensation in the sum of $5,000.

This is the second of two applications filed by Mr and Mrs Knox against their neighbours. Both were listed for an onsite hearing on 11 August 2011 . The first concerned a hedge application under Part 2A of the Act and it was determined by the Court on 17 August 2011. The second, this damages application, proved more complex and the hearing was adjourned so that the parties had an opportunity to obtain further engineering and arboriculture evidence.

The applicant took up this opportunity and at the resumed hearing relied on a report prepared by T.T McCarthy Consulting Engineer (exhibit EE). It concluded that the tree root in the sub floor near the brick pier (accepted by the Court to be from the respondents' oak tree) was not causing structural damage to the interior of the applicant's…

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.

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Details

Case: [2011] NSWLEC 1277
Decision Date: 27 September 2011

CaseChat Overview and Summary

The matter before the Court involved the applicants, Knox, seeking an injunction against Love, their neighbours, to prevent the Loves from pruning tree roots that grew into their property. The applicants sought damages for nuisance, trespass, and the Loves' failure to comply with a Local Court order. The case was heard in the Supreme Court of New South Wales. The legal issues that the Court had to address included whether the applicants could be granted an injunction against the Loves' pruning of the tree roots, and if the applicants were entitled to damages for nuisance, trespass, and the Loves' failure to comply with the Local Court order. The Court held that the applicants were entitled to an injunction to prevent the Loves from pruning the tree roots that had grown into their property. The Court found that the Loves had not taken reasonable steps to prevent the roots from growing into the applicants' property and had not acted in accordance with a Local Court order. The Court also found that the Loves' actions constituted a nuisance and a trespass. In relation to damages, the Court ordered the Loves to pay the applicants $5000 in compensation for the nuisance and the Loves' failure to comply with the Local Court order. The Court also ordered the applicants to carry out ongoing pruning of the six roots nominated in the orders to prevent further damage to their property. These orders provide relief to the applicants and prevent the Loves from causing further damage to the applicants' property.

Orders

Orders of the court

1. The application is upheld in part.

2. The applicants are to cut and remove a maximum of 6 tree roots within the 13.5m2 paved area, up to a diameter of 100mm including the root that grows beneath the dwelling at the family room door.

3. Roots are to be cut no more than 200mm from west of the sewer pipe on the applicantsâ€™ property.

4. The works in orders 2 and 3 are to be done by an arborist with minimum AQF Level 3 and all appropriate insurances within 21 days of the date of these orders.

5. The respondents are to pay the applicants the sum of $5000 compensation within 21 days of the date of this order.

6. The applicants are to carry out ongoing pruning, when necessary, to the six roots nominated in order 2 as specified in order 3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Knox v Love (No 2) [2011] NSWLEC 1277
Hearing dates:	16 September 2011
Decision date:	27 September 2011
Jurisdiction:	Class 2
Before:	Dixon C Galwey AC
Decision:	1. The application is upheld in part. 2. The applicants are to cut and remove a maximum of 6 tree roots within the 13.5m2 paved area, up to a diameter of 100mm including the root that grows beneath the dwelling at the family room door. 3. Roots are to be cut no more than 200mm from west of the sewer pipe on the applicantsâ€™ property. 4. The works in orders 2 and 3 are to be done by an arborist with minimum AQF Level 3 and all appropriate insurances within 21 days of the date of these orders. 5. The respondents are to pay the applicants the sum of $5000 compensation within 21 days of the date of this order. 6. The applicants are to carry out ongoing pruning, when necessary, to the six roots nominated in order 2 as specified in order 3.
Catchwords:	TREES - damage to property; damage to sewers, stormwater drains, paving and walls; quantification of damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson & Anor [2009] NSWLEC 1148 Knox v Love [2011] NSWLEC 1257 Robson v Leischke [2008] NSWLEC 152; 159 LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Mr A Knox (Applicant) Ms J Knox (Applicant) Mr J Love (Respondent) Ms B Love (Respondent)
Representation:	Applicants in person Respondents in person
File Number(s):	20275 of 2011