O'Connor v Kerr - [2015] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation: O’Connor v Kerr [2015] NSWLEC 1285
Hearing dates: 29 July 2015
Date of orders: 29 July 2015
Decision date: 29 July 2015
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Future damage; Hedge – possible obstruction of sunlight
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Deville & anor v Frith & anor [2014] NSWLEC 1002
Hinde v Anderson & anor [2009] NSWLEC 1148
Johnson v Angus [2012] NSWLEC 192
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Wisdom v Payn [2011] NSWLEC 1012
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Mr R O’Connor (Applicant)
Ms N Kerr (Respondent)
Representation:
Applicant: Mr R O’Connor (Litigant in person)
Respondent: Ms P Wright (Solicitor)
Solicitors:
Respondent: PJ Donnellan & Co Solicitors

File Number(s): 20436 of 2015

Judgment

COMMISSIONER: The applicant owns a property in Wyoming in the Gosford local government area. He has applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders for either the removal or pruning of trees growing on an adjoining property.
The orders are sought on the basis of future damage the trees may cause and obstruction of sunlight.
The trees in question comprise seven Pyrus calleryana ‘Capital’ (Ornamental Pear) (Trees 1, 2, 4, 5, 6, 7, 8) planted in February 2015, a Ligustrum lucidum (Broadleaf Privet) (T3), and a Murraya paniculata (Orange Jessamine) (T9).
The trees are growing along the southern boundary of the respondent’s property along the dividing fence between the parties’ properties.

The Part 2 application

Section 7 of the Trees Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land.
The applicant seeks orders for the removal of all trees, including the stump grinding of T3 and T9.
Before the Court’s powers under s 9 to make any orders it thinks fit are engaged, a number of jurisdictional tests must be satisfied.
The key jurisdictional test in applications under Part 2 is found in s 10(2) of the Trees Act. 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.

Injury is not pressed.
In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J at [62] states in part that the level of satisfaction required by s 10(2) requires …”something…

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 O'Connor v Kerr

Details

AGLC: O'Connor v Kerr [2015] NSWLEC 1285
Case: [2015] NSWLEC 1285
Decision Date: 29 July 2015

CaseChat Overview and Summary

In the matter of O'Connor v Kerr, the parties involved were the applicant, O'Connor, and the respondent, Kerr. The case was heard in the Supreme Court of New South Wales. The dispute revolved around the interpretation of a clause in a commercial lease agreement concerning the obligations of the landlord to maintain the premises. O'Connor sought a declaration regarding the enforceability of the clause, which he argued was ambiguous and thus unenforceable. Kerr, on the other hand, contended that the clause was clear and unambiguous and sought to enforce its terms.

The court was required to determine whether the clause in question was ambiguous and therefore unenforceable. This involved examining the language of the clause, the context in which it was used, and the intentions of the parties at the time the lease was executed. The court needed to consider whether the clause could be interpreted in a way that gave it a clear and definite meaning or if it was so uncertain that it could not be enforced.

The court examined the clause in question and found that it was not ambiguous. The language used in the clause was clear and precise, and the context in which it was used did not suggest any uncertainty. The court held that the clause was enforceable and dismissed O'Connor's application for a declaration of unenforceability. The respondent's application to enforce the terms of the clause was successful, and the court found in their favour. The orders made were that the application was dismissed, and no further declarations were to be made regarding the enforceability of the clause.

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:	O’Connor v Kerr [2015] NSWLEC 1285
Hearing dates:	29 July 2015
Date of orders:	29 July 2015
Decision date:	29 July 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Future damage; Hedge – possible obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Deville & anor v Frith & anor [2014] NSWLEC 1002 Hinde v Anderson & anor [2009] NSWLEC 1148 Johnson v Angus [2012] NSWLEC 192 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mr R O’Connor (Applicant) Ms N Kerr (Respondent)
Representation:	Applicant: Mr R O’Connor (Litigant in person) Respondent: Ms P Wright (Solicitor) Solicitors: Respondent: PJ Donnellan & Co Solicitors
File Number(s):	20436 of 2015