Lewis v Tilney - [2009] NSWLEC 1042

Land and Environment Court

of New South Wales

CITATION: Lewis and anor v Tilney and anor [2009] NSWLEC 1042

PARTIES:
APPLICANTS
Patricia and William Lewis
RESPONDENTS
Oswald Tilney and Andrea Coburn

FILE NUMBER(S): 21028 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :-
Bamboo
Need to prove which tree(s) caused damage when multiple trees potentially involved

LEGISLATION CITED: Trees (Disputes Between Neighbours) Regulation 2007

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513

DATES OF HEARING: 28 January 2009

DATE OF JUDGMENT:
20 February 2009

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENTS
Mr T Jessop, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

20 February 2009

21028 of 2008 Patricia and William Lewis v Oswald Tilney and Andrea Coburn
JUDGMENT

1 COMMISSIONERS: Mr and Mrs Lewis live in a house built some 30 years ago. The house to the east is owned and occupied by Mr Tilney who has lived in these premises for over 50 years. Mr Tilney has a large number of trees, including many mature trees, on his property. Ownership of this property is shared, in proportions that are not relevant to this decision, by Mr Tilney and his niece, Ms Andrea Coburn, who lives with him. It is convenient, for the purposes of this decision, to refer to the property as Mr Tilney's property and, as a consequence, to various trees as Mr Tilney's trees.

2 Mr and Mrs Lewis seek orders with respect to eight trees located on Mr Tilney’s property. For the most part, the orders sought are for removal of a tree although, in one instance, the orders that are sought are for the pruning of the tree to the boundary between the two properties and for ongoing maintenance and pruning of this tree. Mr and Mrs Lewis also seek an order for compensation for past damage to a paved area and for the rectification of tree root damage to some stormwater pipes at the rear of their dwelling.

3 Before commencing any discussion on the issues concerning each of the individual trees, It is convenient to note that, before the Court has jurisdiction to consider making any orders with respect to a particular tree, the Court must be satisfied that at least one of four jurisdictional preconditions set by s 10(2) of the Act is met. These tests, in the alternative, are whether the tree has caused, is causing or is likely in the near future to cause damage to the applicants’ property or whether the tree is a likely risk of injury to any person. Each of these questions must be asked, separately, with respect to each of the trees. The standard of satisfaction we are required to have before giving an affirmative answer to any one of these questions is the civil standard of proof…

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 Lewis v Tilney

Details

AGLC: Lewis v Tilney [2009] NSWLEC 1042
Case: [2009] NSWLEC 1042
Decision Date: 20 February 2009

CaseChat Overview and Summary

Patricia and William Lewis brought an action against Oswald Tilney and Andrea Coburn regarding eight trees on Tilney's property that they claimed were causing damage to their property. The primary issue for the court was whether the trees, or their roots, had caused, were causing, or were likely to cause damage to the Lewis' property. The court had to consider the jurisdictional conditions set by s 10(2) of the Act before considering whether to make any orders. The court found that the Lewis' application concerning most of the trees did not meet the jurisdictional conditions, and therefore, dismissed their application. For the eucalyptus tree, the court found that the deadwood overhanging the Lewis' property posed a risk of injury and ordered its removal by a qualified arborist. The court also noted that the deposition of leaves and small twigs on the Lewis' property did not provide a basis for interference with or removal of the tree. For the bamboo, the court found that the Lewis' application did not have a proper jurisdictional foundation as the bamboo on their side of the boundary was not part of a conjoined association with the bamboo on Tilney's property. For the Moreton Bay Fig tree, the court found that the paving had been damaged in the past, but the subsequent construction techniques adopted by the Lewis' had prevented any further damage. The court also found that it was not appropriate to require Tilney to compensate the Lewis' for the inadequate workmanship and lack of appropriate precautions in the original construction. For the Lilly Pilly, the court found that tree roots had caused damage to the Lewis' stormwater pipes, but could not be satisfied that the Lilly Pilly was the sole source of the roots. Finally, for the Jacaranda, the court found that there was no basis for making any order for interference with or removal of the tree as there was no evidence of past or present damage caused by the roots of this tree.

Orders