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Moroney v John

Moroney v John

Case [2008] NSWLEC 32 22 January 2008

Statutory Interpretation

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Land and Environment Court

of New South Wales

CITATION: Moroney v John [2008] NSWLEC 32

PARTIES:
APPLICANT
Philip Moroney
RESPONDENT
Tanya John

FILE NUMBER(S): 21152 of 2007

CORAM: Moore C - Fakes AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Statutory limitation on time period for compensation claims

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Limitation Act 1969

CASES CITED: Black v Johnson (No 2) [2007] NSWLEC 513
Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 22 January 2008

EX TEMPORE JUDGMENT DATE: 22 January 2008

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENT
Mr J Poole, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

22 January 2008

07/21152 Philip Moroney v Tanya John
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

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
JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerning six trees being five Camphor Laurels (Cinnamomum camphora) and one Cypress Pine (Cupressus spp) (the trees) located on 21 Wybalena Road, Hunters Hill. The property is owned by Ms Tanya John who has been represented throughout the proceedings by her father, Mr John Poole. The Court has been provided with a letter of authority for him to Act on her behalf.

2 The application is bought by Mr Moroney who lives at 25 Wybalena Road. The orders which Mr Moroney seeks are:

removal of the trees;
compensation of the sum of $11,401.10 (which includes a degree of indexation to the expenditure he has incurred);
replacement of the trees which he proposes be removed with small trees which would be limited in their growth to some 2 m or so in height; and
after the removal of the trees, the requirement that the respondent pay for a plumber to run an electric eel up Mr Moroney’s sewer pipe from the adjacent Sydney Water construction access hole to ensure that the pipes are free of tree roots.

3 Mr Moroney’s property, although not numerically adjacent to Ms John’s property, is at the rear of 23 Wybalena Road and adjoins Ms John’s access road at the point adjacent to the location of the trees.

4 The topography of the area slopes steeply towards an arm of the Sydney Harbour and there is a Sydney Water sewer trunk main running from the north west towards Ms John’s access road and turning at approximately right angles, in…

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 Moroney v John

Details

AGLC: Moroney v John [2008] NSWLEC 32
Case: [2008] NSWLEC 32
Decision Date: 22 January 2008

CaseChat Overview and Summary

In Moroney v John, the Land and Environment Court of New South Wales was tasked with determining an application by Philip Moroney against Tanya John concerning six trees located on John's property at 21 Wybalena Road, Hunters Hill. The trees in question were five Camphor Laurels and one Cypress Pine. The primary legal issues centred around the statutory limitation on compensation claims under the Trees (Disputes Between Neighbours) Act 2006 and whether the trees should be removed or interfered with.

The court found that the trees had caused damage to Moroney's property in the past, specifically root blockages in his sewer pipes. However, the court concluded that there were no grounds for the removal of the trees at present. The court reasoned that while there was evidence of root spread into Moroney's property, there was no demonstration of likely future damage to the house itself. Additionally, the court noted that the maintenance issues arising from the trees, such as leaves in the gutters, did not constitute extraordinary circumstances warranting tree removal.

Regarding the compensation claim, the court held that it was time-barred under the Limitation Act 1969, as the claimed damages had occurred more than six years prior to the application being lodged. However, the court did order that Tanya John should pay for the replacement of the remaining earthenware section of Moroney's sewer pipes, considering the ongoing root issues and Moroney's previous expenditures on this matter.

The court's final orders were that no trees would be removed or interfered with, and that if Moroney chose to replace the remaining earthenware pipe section, Tanya John would be required to pay for the replacement based on the lower of two written quotations provided by Moroney.

Orders