Lazarus v Harry - [2009] NSWLEC 1055

Land and Environment Court

of New South Wales

CITATION: Lazarus and Anor v Harry [2009] NSWLEC 1055

PARTIES:
APPLICANT
Marcella Lazarus and Peter Nissen
RESPONDENT
Barbara Harry

FILE NUMBER(S): 21219 of 2008

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to Property

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 18/02/2009

EX TEMPORE JUDGMENT DATE: 18 February 2009

LEGAL REPRESENTATIVES:
APPLICANT
Marcella Lazarus and
Peter Nissen, litigants in person
RESPONDENT
Barbara Harry, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

18 February 2009

21219 of 2008

Marcella Lazarus and Peter Nissen v Barbara Harry

JUDGMENT

1 ACTING COMMISSIONER: A very large Plane tree is growing in the backyard of 8 Punch Street, Balmain, which is owned by Ms Harry. The Plane tree was on the property when she purchased in 1973. The tree is located close to the common boundary of the adjoining property to the north.

2 Ms Lazarus and Peter Nissen are the owners of 10 Punch Street, Balmain, the adjoining property to the north. They bought their property three and a half years ago in 2005. They make an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage, and to prevent injury to people.

3 They seek orders for removal of the tree and its root system from their property, repair of damage to their paving and house wall, and reinstatement of the unsafe retaining wall to 8 Punch Street, at Ms Harry’s cost.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

6 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

Reports and public submissions

7 Ms Lazarus and Mr Nissen include two reports in their original application:

8 Ms Lazarus and Mr Nissen lodged two further…

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 Lazarus v Harry

Details

AGLC: Lazarus v Harry [2009] NSWLEC 1055
Case: [2009] NSWLEC 1055
Decision Date: 18 February 2009

CaseChat Overview and Summary

In the case of Lazarus v Harry, the applicants Marcella Lazarus and Peter Nissen sought relief under the Trees (Disputes Between Neighbours) Act 2006 due to damage caused by a Plane tree located on the property of Barbara Harry. The applicants, owners of the adjoining property, claimed that the tree had caused damage to their property and posed a risk of injury. They sought orders for the removal of the tree, repair of the damage, and reinstatement of the unsafe retaining wall. The court was required to determine whether the tree had caused or was likely to cause damage to the applicants' property, whether it posed a risk of injury, and if so, what orders should be made.

The court found that the Plane tree had indeed caused damage to the applicants' property, meeting the first test under section 10(2)(a) of the Act. The tree had contributed to damage of the retaining wall, paving, and the fibro extension, and the risk of further damage and injury warranted intervention. However, the tree was also found to be a significant landscape element providing aesthetic and climatic benefits, and thus worthy of retention. The court ordered that the retaining wall be rebuilt in a manner that protected necessary tree roots, shared the cost of repair between the parties, and ordered pruning of the tree. The parties also agreed on the terms of the pruning work, which was to be shared in cost and completed by a qualified arborist.

The final orders included the dismantling and reconstruction of the retaining wall, protection of tree roots during the reconstruction, removal of certain tree roots, and sharing of the cost of the retaining wall repair. The paving and tree roots on the applicants' property were to be lifted and roots removed, with Ms Harry bearing the full cost. The dilapidated timber fence was to be removed and a new one constructed, shared in cost between the parties. Ms Harry was not to pay for repairs to the fibro extension on the applicants' property.

Orders