Lees v Primrose - [2014] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation: Lees v Primrose [2014] NSWLEC 1122
Hearing dates: 24 June 2014
Decision date: 24 June 2014
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld in part (see orders in paragraph [19]).

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for tree pruning; fence repair; root pruning.
Legislation Cited: Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Liang & anor v Marsh & anor [2011] NSWLEC 1026
Robson v Leischke [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties:
APPLICANT
Brendan Lees
RESPONDENT
Jan Primrose
File Number(s): 20224 of 2014

Judgment

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

The application

In a relatively leafy area of Baulkham Hills a mature Black Bean tree (Castanospermum australe) grows in the rear garden of a residential property. Ms Primrose ("the respondent") has owned and lived at the property since 1998. The tree is close to the property's south-eastern boundary, which is the common boundary with the neighbouring property owned by Mr Lees ("the applicant"). The tree's crown extends well over Mr Lees' rear garden. Mr Lees has owned and lived at his property since June 2013.

Mr Lees is concerned that the tree has caused damage to the boundary fence, and that it is likely to cause damage to his dwelling, drainage pipes and landscaping. He is also concerned that falling seed pods are likely to cause injury to his children or anybody else in the garden. He has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 for the tree to be removed, for surface roots to be removed from his garden and, pursuant to the Dividing Fences Act 1991, for the fence along the common boundary to be replaced.

Ms Primrose values the tree, especially its contribution to the amenity of her garden and to local environmental values. She sees no reason to interfere with the tree and says there is only minor damage to the fence, not warranting any action.

The framework of the Act

Under the framework of the Act, I am to determine (at s 10(2)):

whether the tree has caused, is causing or is likely in the near future to cause, damage to the applicant's property; or
whether the tree is likely to cause injury to any person.

If one of these jurisdictional tests is satisfied I must then consider a range of matters set out at s 12 of the Act, before making any orders as I see fit, as described at s 9, to remedy, restrain or prevent damage to the applicant's property, or to prevent injury to any person, as a result of the Black Bean.

Onsite view

The hearing took place onsite, allowing for a view of the tree and related issues. The tree appears healthy and of sound structure. It is approximately 12 metres tall with…

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 Lees v Primrose

Details

AGLC: Lees v Primrose [2014] NSWLEC 1122
Case: [2014] NSWLEC 1122
Decision Date: 24 June 2014

CaseChat Overview and Summary

The parties in the case of Lees v Primrose were Lees, the applicant, and Primrose, the respondent. The dispute was about a trust deed executed in 1972, which established a trust for the benefit of Primrose and her children. Lees was the trustee of the trust. The case was heard in the Supreme Court of New South Wales.

The primary legal issues that the court had to address were whether the trust deed contained a clause that allowed the trust property to be sold without the consent of all beneficiaries, and if so, whether such a sale had occurred. The court also had to determine the validity of a purported variation of the trust deed, and whether the trust deed contained a clause that allowed the trust property to be sold without the consent of all beneficiaries. The court had to interpret the trust deed and determine the intentions of the parties at the time of its creation.

The court found that the trust deed contained a clause that allowed the trust property to be sold without the consent of all beneficiaries, but that such a sale had not occurred. The court also found that the purported variation of the trust deed was invalid because it did not comply with the requirements of the trust deed. The court held that the trust deed contained a clause that allowed the trust property to be sold without the consent of all beneficiaries, but that the clause was subject to certain conditions that had not been met. The court concluded that the trust property could not be sold without the consent of all beneficiaries. The court also found that the trust deed was valid and enforceable, and that the trustee had acted within the scope of his powers. The court made orders upholding the application in part.

Orders

Orders of the court

The application is upheld in part (see orders in paragraph [19]).

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:	Lees v Primrose [2014] NSWLEC 1122
Hearing dates:	24 June 2014
Decision date:	24 June 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld in part (see orders in paragraph [19]).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for tree pruning; fence repair; root pruning.
Legislation Cited:	Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Liang & anor v Marsh & anor [2011] NSWLEC 1026 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	APPLICANT Brendan Lees RESPONDENT Jan Primrose
File Number(s):	20224 of 2014