Norman v Symonds - [2024] NSWLEC 1847

Land and Environment Court

New South Wales

Medium Neutral Citation: Norman v Symonds [2024] NSWLEC 1847
Hearing dates: 19 June 2024
Date of orders: 19 June 2024
Decision date: 19 June 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
1) The respondents, at their expense, shall employ a licenced pest controller to investigate the Eucalyptus tree for the presence of an active termite nest and exterminate termites from the tree. These works shall be completed within 45 days of the date of these orders.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – fungal bracket – apprehension of damage and injury – dead sticks falling onto applicant’s land

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006,
Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category: Principal judgment
Parties: Susan Norman (Applicant)
John Symonds (First Respondent)
Claudia Symonds (Second Respondent)
Representation: S Norman (Self-represented) (Applicant)
J Symonds (Self-represented) (First Respondent)
C Symonds (Self-represented) (Second Respondent)

File Number(s): 2024/141332
Publication restriction: Nil

JUDGMENT

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

Background

COMMISSIONER: For about 53 years, Susan Norman (the applicant), has resided at her property in Huskisson, which shares a side boundary with the property of John and Claudia Symonds (the respondents). The respondents have owned their property for about 24 years and lease it for short stay accommodation. A Southern Mahogany (Eucalyptus botryoides) (the tree) was located in the respondents’ front yard about 2.5 metres (m) from the common boundary and about 1 m from the respondents’ front boundary. A substantial Wattle tree that had grown around the tree’s trunks was dead and deteriorating.
In her Statement of 1 June 2024, Ms Norman contended that the tree’s branches extending over the common boundary persistently dropped dead sticks onto her land. Ms Norman said she paid for removal of overhanging branches many years ago and on 8 February 2024, she sought a quote for similar overhanging branch removal. Ms Norman claimed that Dylan Smith from A&D Tree Services, upon inspecting the tree on 12 February 2024, “informed me the eucalyptus had Bracket Fungi rot and in strong windy conditions had dangerous potential risks falling onto properties”. Ms Norman said Dylan attempted to contact the respondents on her behalf to discuss his findings but received no reply.
Next, Ms Norman contacted Chris at Assured Tree Solutions, who provided a tree removal quote on 26 February 2024 for $2,860.00. The quote noted that the “tree has bracket fungi which is an indication of rot”, … and co-dominant stems. The quote included a comment that “co-dominant stems tend to fail much more often than others, especially in storms”, and recommended tree removal. Ms Norman said Mark from CSI Pest Control verified a “termite infestation” in her dwelling on 1 March 2024, that Mark “agreed…

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 Norman v Symonds

Details

AGLC: Norman v Symonds [2024] NSWLEC 1847
Case: [2024] NSWLEC 1847
Decision Date: 19 June 2024

CaseChat Overview and Summary

The matter before the Court involved a dispute between Norman and Symonds. The nature of the conflict was centered around the alleged presence of termites in an Eucalyptus tree located on Symonds' property, which was causing damage to Norman's adjacent property. The Court of Disputed Returns was tasked with resolving this issue.

The central legal questions that the Court needed to address were whether the respondents were indeed responsible for the termite infestation and if they were liable for any resultant damages. Additionally, the Court had to determine the appropriate course of action to rectify the situation and prevent future harm.

In reaching its decision, the Court examined the evidence presented by both parties, including expert testimonies and photographic evidence of the damage. The Court found that the presence of an active termite nest in the Eucalyptus tree was a direct cause of the damage to Norman's property. Consequently, the Court held that the respondents were liable for the damage caused by the termite infestation. The Court ordered that the respondents were to employ a licensed pest controller to investigate the tree for the presence of termites and to exterminate them if found. This work was to be completed within 45 days of the Court's orders.

Orders

Orders of the court

The Court orders that:

1) The respondents, at their expense, shall employ a licenced pest controller to investigate the Eucalyptus tree for the presence of an active termite nest and exterminate termites from the tree. These works shall be completed within 45 days of the date of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Norman v Symonds [2024] NSWLEC 1847
Hearing dates:	19 June 2024
Date of orders:	19 June 2024
Decision date:	19 June 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: 1) The respondents, at their expense, shall employ a licenced pest controller to investigate the Eucalyptus tree for the presence of an active termite nest and exterminate termites from the tree. These works shall be completed within 45 days of the date of these orders.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – fungal bracket – apprehension of damage and injury – dead sticks falling onto applicant’s land
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Susan Norman (Applicant) John Symonds (First Respondent) Claudia Symonds (Second Respondent)
Representation:	S Norman (Self-represented) (Applicant) J Symonds (Self-represented) (First Respondent) C Symonds (Self-represented) (Second Respondent)
File Number(s):	2024/141332
Publication restriction:	Nil