McCormack v Spencer - [2008] NSWLEC 1285

Land and Environment Court

of New South Wales

CITATION: McCormack v Spencer [2008] NSWLEC 1285

PARTIES:
APPLICANT
John McCormack
RESPONDENTS
Ronald & Dianne Spencer

FILE NUMBER(S): 20286 of 2008

CORAM: Moore C

KEY ISSUES: Jurisdiction - Trees (Neighbours) :-
Meaning of "owner"
Rights of carriageway

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152
Brown & anor v Weaver [2007] NSWLEC 738

DATES OF HEARING: 27 June and written submissions 4 July 2008

DATE OF JUDGMENT:
14 July 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Ellison, solicitor
G. M. Ellison & Co
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

14 July 2008

08/20286 John McCormack v Ronald & Dianne Spencer

JUDGMENT

Introduction

1 COMMISSIONER: Mr McCormack lives in a house on a landlocked allotment with a water frontage to Oyster Bay. His property’s street address is 84 Oyster Bay Road. Immediately to the south is a house on a similar landlocked allotment and also having a frontage to Oyster Bay. This property’s street address is 86 Oyster Bay Road.

2 Each of these landlocked parcels of land has access to Oyster Bay Road via another allotment with a frontage to Oyster Bay Road. This access is via rights of carriageway. Each of these landlocked allotments has a separate right of carriageway. The two rights of carriageway are adjacent and have a common boundary – also being the common boundary between the front allotments.

3 Mr McCormack's right of carriageway is over 82 Oyster Bay Road which is owned by the Spencers – the respondents to Mr McCormack’s application. The right of carriageway serving 86 Oyster Bay Road is over 88 Oyster Bay Road.

4 Mr McCormack has provided a “not to scale” sketch showing the general layout of the property boundaries of the four relevant properties and two rights of carriageway.

5 Also relevantly, Mr McCormack also has an easement for services which easement is co-extensive with his right of carriageway over the Spencers’ property (according to the survey plan below). Mr McCormick's water, electricity and telecommunications services are located in a trench adjacent to the boundary between the two rights of carriageway.

Mr McCormack’s application

6 Mr McCormack's application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 was originally for the removal of three trees (one eucalypt and two paperbarks) located on the boundary between the two Oyster Bay Road frontage properties (and thus on the boundary of the two rights of carriageway). The application included a claim for compensation for damage caused by one of those trees - a large eucalypt which was described by Sutherland Shire Council as being a Blue Gum (Eucalyptus saligna). The other two trees are not a matter requiring consideration in Mr McCormack’s compensation claim. This compensation claim is for damage to his services in the vicinity of the Blue Gum (and in the right of carriageway) and for works he had…

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 McCormack v Spencer

Details

AGLC: McCormack v Spencer [2008] NSWLEC 1285
Case: [2008] NSWLEC 1285
Decision Date: 14 July 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, John McCormack filed an application against Ronald and Dianne Spencer to remove three trees on the boundary of their properties and to seek compensation for the damage caused by one of the trees. The Spencers are the owners of the property over which McCormack's right of carriageway exists. The central issue in the case was whether the court had jurisdiction to hear the application under the Trees (Disputes Between Neighbours) Act 2006. The court needed to determine if McCormack was an owner of land for the purposes of the Act and if the tree in question was situated principally on the adjoining land. The Commissioner found that McCormack's application was fundamentally flawed and, regardless of how the relevant issues were construed, the court lacked jurisdiction to hear the application. The Commissioner concluded that the application was a waste of the court's and the parties' time and resources, and it was dismissed.

Orders