Murray v Shoebridge - [2007] NSWLEC 785

Land and Environment Court

of New South Wales

CITATION: Murray v Shoebridge [2007] NSWLEC 785

PARTIES:
APPLICANT
John Murray
RESPONDENT
Judith Shoebridge

FILE NUMBER(S): 20845 of 2007

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- removal of a tree

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128

DATES OF HEARING: 13/11/2007

EX TEMPORE JUDGMENT DATE: 13 November 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Murray, litigant in person
RESPONDENT
Mr P. Orchiston, solicitor
of Commercial Corporate & Property Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

13 November 2007

20845 of 2007 John Murray v Judith Shoebridge

JUDGMENT

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning one tree (the tree) situated on 14 Gilbert Place, Frenchs Forest (the property). The property is owned by Mrs Judith Shoebridge.

2 The tree is a Sydney blue gum (Eucalyptus saligna).

3 The application has been made by Mr John Murray, owner of 13 Gilbert Place, which is located on the other side of a 3 m wide public walkway, to the north of the tree.

4 I am satisfied that for this application the properties are adjoining for the purposes of the Act, in accordance with the decision of the Court in P. Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128 where the properties were separated by a public road.

5 I observed that some part of the trunk of the tree at ground level appears to be growing on the public walkway. However, I am satisfied that the tree is situated on the respondent’s land for the purposes of the Act, as the tree is situated principally on the land, in accordance with s 4(3) of the Act.

6 The application seeks orders from the Court that the tree be removed or made safe.

7 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

8 These tests are:

9 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

10 I have examined the tree from ground level, and have been…

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 Murray v Shoebridge

Details

AGLC: Murray v Shoebridge [2007] NSWLEC 785
Case: [2007] NSWLEC 785
Decision Date: 13 November 2007

CaseChat Overview and Summary

The case of Murray v Shoebridge involved an application under the Trees (Disputes Between Neighbours) Act 2006 by John Murray against Judith Shoebridge regarding the removal or making safe of a Sydney blue gum tree located on Shoebridge's property at 14 Gilbert Place, Frenchs Forest. Murray, the owner of the adjoining property to the north, argued that the tree posed a risk to his property and potentially to persons. The tree in question, situated on a public walkway, was a mature Sydney blue gum approximately 22 metres in height and with a 15-metre spread, with co-dominant trunks arising from 1 metre above ground level.

The primary legal issue before the court was whether the tree met any of the statutory conditions that would allow the court to intervene. The court had to determine if the tree had caused, was causing, or was likely to cause damage to Murray's property or injury to any person. The court considered expert arborist reports and its own observations of the tree, weighing the differing opinions on the risk posed by the tree. After reviewing the evidence, the court found that the tree was unlikely to cause damage in the near future or injury, and therefore did not satisfy any of the statutory conditions for intervention.

The court dismissed the application as it did not have jurisdiction to order any action regarding the tree. However, during the hearing, the parties reached an agreement regarding the management and inspection of the tree. The court noted this agreement, which included pruning of deadwood, an aerial inspection, and the potential removal of one of the tree's trunks if significant decay was found. The court concluded by dismissing the matter and recording the terms of the agreement reached by the parties.

Orders