MacPhail v Ware - [2008] NSWLEC 1213

Land and Environment Court

of New South Wales

CITATION: MacPhail v Ware [2008] NSWLEC 1213

PARTIES:
APPLICANTS
R & G MacPhail
RESPONDENTS
K & R Ware

FILE NUMBER(S): 20296 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 14 May 2008

EX TEMPORE JUDGMENT DATE: 14 May 2008

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

14 May 2008

08/20296 MacPhail v Ware

JUDGMENT
The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONERS: Mr and Mrs MacPhail live at 37Fowler Road, Illawong – a battle-axe allotment. Mr and Mrs Ware live at 35 Fowler Road along the north-eastern side of this battle-axe allotment.

2 There are a number of trees planted in both properties along the McPhails’ access way and extending into the MacPhails’ property close to the common boundary between them. Mr and Mrs MacPhail have made an application of the Court pursuant to the Trees (Dispute between neighbours Act) 2006 concerning three of those trees.

3 Two of those trees are located on the boundary and we have considered whether in each case they are located “principally” on the Wares’ property as is required by s 4(3) of the Act to give us jurisdiction to deal with them. This issue will be dealt with when considering each of the trees.

4 We are also satisfied pursuant to s 10(1) of the Act that Mr and Mrs MacPhail have endeavoured to resolve the dispute between themselves and the Wares at various times with respect to the various trees on dates since June 2007.

5 At this hearing, the MacPhails have indicated that they have not drawn these matters to the attention of the Wares prior to June 2007 – being a matter which we will take into account when considering what decision, if any, we should make with respect to any of the trees.

6 The applications with respect to each of the trees fall in two parts. The first is an order for removal of the tree being sought and the second is an order for compensation payment being sought with respect to what Mr and Mrs MacPhail say is the damage caused by the roots of each of the trees to the concrete slabs of their driveways.

7 For 35 m of the driveway from Fowler Road toward the MacPhails’ house, the driveway comprises two 900 mm wide concrete slabs with a 600 mm grass strip…

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 MacPhail v Ware

Details

AGLC: MacPhail v Ware [2008] NSWLEC 1213
Case: [2008] NSWLEC 1213
Decision Date: 14 May 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of MacPhail v Ware was heard concerning a dispute over trees between neighbors. The applicants, Mr and Mrs MacPhail, sought the removal of three trees and compensation for damage caused by the trees' roots to their driveway. The respondents, Mr and Mrs Ware, lived next door and owned the trees in question. The legal issues before the court included whether the trees were principally located on the Wares' property, as required by the Trees (Disputes Between Neighbours) Act 2006, and if the trees had caused damage to the MacPhails' property. The court was also required to consider whether the MacPhails had made reasonable efforts to resolve the dispute before approaching the court.

The court found that two of the trees were principally located on the Wares' property, giving the court jurisdiction to address the dispute. The court also concluded that the MacPhails had made efforts to resolve the dispute with the Wares before bringing the matter to court. Regarding the damage to the driveway, the court found that while the roots of the Jacaranda tree likely caused some lifting of the driveway slab, no significant lifting had occurred since the issue was brought to the Wares' attention. The court decided that there was no basis for ordering the removal of the Jacaranda tree or for requiring the Wares to contribute to the driveway's reinstatement.

In the case of the second tree, the gum tree, the court determined that it was dead and unlikely to cause future damage. However, it found that the Wares were responsible for some damage caused during the tree's removal and ordered the Wares to contribute $200 towards the driveway's replacement. Lastly, concerning the Liquidambar tree, the court found that it straddled both properties but was mostly on the Wares' side. The court concluded that the tree was causing ongoing damage and ordered its removal, to be shared between the parties in terms of responsibility and cost. The tree was to be removed between August 1 and October 30, 2008.

The final orders included the removal of the Liquidambar tree by the MacPhails, with the Wares to pay 50% of the cost, and the Wares to contribute $200 towards the driveway's replacement. The court emphasized that the removal should be done in a way that minimizes inconvenience to the Wares, who were to supervise the work on their property.

Orders