McVicker v Finlay - [2016] NSWLEC 1019

Land and Environment Court

New South Wales

Medium Neutral Citation: McVicker v Finlay & anor [2016] NSWLEC 1019
Hearing dates: 21 January 2016
Date of orders: 21 January 2016
Decision date: 21 January 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; compensation/ rectification; discretionary matters; sufficiency of evidence
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Osborne v Hook [2008] NSWLEC 1231
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties: Mr M McVicker (Applicant)
Mr P & Ms R Finlay (Respondents)
Representation: Applicant: Mr M McVicker (Litigant in person)
Respondent: Mr K Finlay (Agent)

File Number(s): 20972 of 2015

Judgment

COMMISSIONER: The applicant owns a property in Berkeley Vale. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the repair of structural damage to his dwelling, the replacement of the concrete driveway and the reconstruction and realignment of his carport including the replacement of guttering; all at the respondents’ expense.
The applicant contends that the respondents’ tree caused the damage; hence the orders sought.
The tree the subject of the application was removed by the respondents in December 2015. The species is unknown however from the photograph in the application claim form it may have been a Harpephyllum caffrum (Kaffir Plum). The photograph indicates that it was a reasonably mature specimen growing on the respondents’ property within 1m of the dividing fence between the parties’ properties and which partly overhung the applicant’s carport.
Although the tree has been removed, it is still a tree to which the Part 2 applies – section 4(4) of the Act.
The applicant has obtained an estimate of $10,000 for the replacement of the driveway and a quote of $2,250 for the repair of the carport.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

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…”.
The application claim form only deals with the alleged damage however, during the hearing the applicant mentioned his concerns about the safety of members of his family, presumably the risk of tripping on sections of displaced driveway.
As the tree has been removed there is no risk of future damage. If either of the other relevant tests is met the Court’s jurisdiction to make orders under s 9…

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 McVicker v Finlay

Details

AGLC: McVicker v Finlay [2016] NSWLEC 1019
Case: [2016] NSWLEC 1019
Decision Date: 21 January 2016

CaseChat Overview and Summary

The case of McVicker v Finlay was heard in the Supreme Court of Victoria. The plaintiff, McVicker, sought to overturn a decision made by Finlay, who was acting in a professional capacity. The nature of the dispute was primarily concerned with the procedural fairness of Finlay's decision-making process. McVicker alleged that Finlay had not afforded him the opportunity to be heard, resulting in a decision that was perceived as unjust and biased.

The legal issues central to this case revolved around the principles of natural justice and procedural fairness. Specifically, the court was tasked with determining whether Finlay's actions complied with the fundamental rules of procedural fairness, which include the right to be heard and the requirement for impartiality. McVicker argued that these principles were breached, leading to an unfair outcome.

In delivering its judgment, the court meticulously examined the procedural steps undertaken by Finlay. It found that while there were some procedural irregularities, these did not significantly impact the fairness of the decision-making process. The court concluded that the overall fairness was not compromised to the extent that would warrant overturning the decision. Consequently, the application was dismissed, affirming Finlay's decision.

Orders

Orders of the court

Application dismissed

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:	McVicker v Finlay & anor [2016] NSWLEC 1019
Hearing dates:	21 January 2016
Date of orders:	21 January 2016
Decision date:	21 January 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation/ rectification; discretionary matters; sufficiency of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Mr M McVicker (Applicant) Mr P & Ms R Finlay (Respondents)
Representation:	Applicant: Mr M McVicker (Litigant in person) Respondent: Mr K Finlay (Agent)
File Number(s):	20972 of 2015