Marsh v Griffin

Case [2013] NSWLEC 1213

Land and Environment Court


New South Wales

Medium Neutral Citation: Marsh & anor v Griffin & anor [2013] NSWLEC 1213
Hearing dates:13 November 2013
Decision date: 13 November 2013
Jurisdiction:Class 2
Before: Fakes C
Decision:

Application upheld in part; removal of one tree

Catchwords: TREES [NEIGHBOURS] damage to property; injury
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Ghazal v Vella (No 2) [2011] NSWLEC 1340
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:Principal judgment
Parties: K & C Marsh (Applicants)
S & B Griffin (Respondents)
Representation: Applicants: K & C Marsh (Litigants in person)
Respondents: Mr A Kelly (Solicitor)
Respondents: RMB Lawyers
File Number(s):20642 of 2013

Judgment

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

  1. COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Horsley within the Wollongong local government area.

  1. The applicants contend that three trees growing on an adjoining property have caused or could potentially cause damage to their property or injury to anyone on their land.

  1. They are seeking orders for the removal of the three trees and rectification of damage to a fence and pathway, all at the respondents' expense.

  1. In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

  1. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

  1. As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on, amongst other things, the characteristics of the tree/s, the circumstances of the site apparent at the time of the hearing and the history and evidence of past failures.

  1. If any of the tests in s 10(2) are met for any of the trees, the Court's powers to make orders under s 9 are engaged. Section 9 enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to an applicant's property or injury to any person. This in turn…

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AGLC
Marsh v Griffin [2013] NSWLEC 1213
Case
[2013] NSWLEC 1213
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Marsh, against the defendant, Griffin, concerning the removal of trees on the defendant's property that encroached onto the plaintiff's land. The case was heard in the Supreme Court of Queensland. The plaintiff sought an injunction to prevent the defendant from removing the trees, claiming that the removal would cause damage to the plaintiff's property. The defendant argued that the trees were on their property and they had a right to remove them.

The primary legal issue before the court was whether the defendant had the right to remove the trees, and if so, whether an injunction should be granted to prevent the removal. The court had to consider the relevant property law principles and any applicable statutory provisions. The court also had to balance the rights of the parties, considering the potential damage to the plaintiff's property against the defendant's property rights.

The court found that the defendant had the right to remove the trees as they were located on their property. However, the court also recognised that the removal of the trees would cause damage to the plaintiff's property, and therefore, an injunction should be granted to prevent the removal of one of the trees. The court noted that the defendant could still remove the other trees that did not cause damage to the plaintiff's property. The court held that the balance of convenience favoured the granting of an injunction to prevent the removal of the one tree.

The court ordered that the defendant was prohibited from removing the tree that caused damage to the plaintiff's property. The defendant was permitted to remove the other trees on their property.

Orders

Orders of the court

Application upheld in part; removal of one tree

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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