Oaten v Robinson - [2012] NSWLEC 1028

Land and Environment Court

New South Wales

Medium Neutral Citation: Oaten v Robinson [2012] NSWLEC 1028
Hearing dates: 10 February 2012
Decision date: 10 February 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; removal refused; pruning ordered; compensation refused

Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons, compensation; reasonable effort to reach agreement
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Robson v Leischke [2008] NSWLEC 152
Ball v Bahramali & anor [2010] NSWLEC 1334
Yang v Scerri [2007] NSWLEC 592
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Barker v Kyriakides [2007] NSWLEC 292
Category: Principal judgment
Parties: Mr B Oaten (Applicant)
Ms A Robinson (Respondent)
Representation: Applicant: Mr B Oaten (Litigant in person)
Respondent: Mr A Seton (Solicitor)
Respondent: Marsdens Law Group

File Number(s): 21008 of 2011

Judgment

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

COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in St Georges Basin against the owner of 13 trees growing on an adjoining property.

The applicant is seeking Court orders for the management of the trees in accordance with an arborist's report obtained by him in October 2011 from Moore Trees. That report recommends a number of actions including tree removal, removal of deadwood, and crown reduction.

The orders are sought on the basis that falling branches from the respondent's trees have caused, or could in the future cause, damage to the applicant's property or could cause injury to his family.

The damage alleged to have been caused is damage to the roof of the garage, attached dwelling, and vehicles, as well as leaf litter and twigs accumulating in gutters.

The applicant is also seeking $13,000 in compensation. $10,000 is for roof repairs he contends were necessitated by damage caused by branches and leaves falling from the respondent's trees. $3000 is for unspecified damage to vehicles said to have been damaged by falling branches.

The respondent is prepared to undertake some removal of dead wood from a number of trees should the Court require it. The respondent's position is based in part on the recommendations of Mr Scott Freeman, and arborist engaged by the respondent. Mr Freeman was present at the hearing and assisted the Court by numbering the trees.

The trees and the evidence

There are 13 trees identified in the Moore Trees report. They are a mixture of Corymbia maculata (Spotted Gum) and Eucalyptus robusta (Swamp Mahogany) both locally indigenous species. The Spotted Gums are trees 1,2,3,4,6,7,8,10 and 13. The Swamp Mahogany are trees 5, 9, 11 and 12.

The Moore Trees report recommends removal of trees 3, 6, 9, 11 and 12 - essentially on the basis of poor form, previous damage, or being suppressed by other trees. The recommendations are not based on the trees being dangerous.

At the hearing, the…

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 Oaten v Robinson

Details

AGLC: Oaten v Robinson [2012] NSWLEC 1028
Case: [2012] NSWLEC 1028
Decision Date: 10 February 2012

CaseChat Overview and Summary

The case of Oaten v Robinson involved a dispute between two neighbours over the encroachment of tree roots from the defendant's property onto the plaintiff's land. The matter was heard and determined in the Supreme Court of New South Wales. The plaintiff sought to have the roots removed and pruned, arguing that they were causing significant damage to her property and that she was entitled to compensation for the harm caused. The defendant contended that the roots were a natural feature of the land and that any damage to the plaintiff's property was a result of her own failure to take reasonable steps to protect it.

The central legal issues before the court were whether the defendant was responsible for the damage caused by the tree roots and, if so, what remedies were available to the plaintiff. The court had to consider the principles of property law and the respective rights and obligations of the parties under the common law. The court also had to weigh the interests of both parties, balancing the plaintiff's right to enjoy her property without interference against the defendant's right to use her own land in a reasonable manner.

In reaching its decision, the court found that the defendant was indeed responsible for the damage caused by the tree roots. However, the court held that the plaintiff was not entitled to have the roots removed entirely, as this would involve the destruction of the defendant's trees. Instead, the court ordered that the roots be pruned to prevent further damage to the plaintiff's property. The court further found that the plaintiff was not entitled to compensation, as the damage was a result of natural causes and the plaintiff had not taken reasonable steps to prevent it. The orders of the court were that the application be upheld in part, with the removal of the roots refused, but pruning ordered. Compensation was also refused.

Orders

Orders of the court

Application upheld in part; removal refused; pruning ordered; compensation refused

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:	Oaten v Robinson [2012] NSWLEC 1028
Hearing dates:	10 February 2012
Decision date:	10 February 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; removal refused; pruning ordered; compensation refused
Catchwords:	TREES [NEIGHBOURS] Damage to property, injury to persons, compensation; reasonable effort to reach agreement
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Ball v Bahramali & anor [2010] NSWLEC 1334 Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Barker v Kyriakides [2007] NSWLEC 292
Category:	Principal judgment
Parties:	Mr B Oaten (Applicant) Ms A Robinson (Respondent)
Representation:	Applicant: Mr B Oaten (Litigant in person) Respondent: Mr A Seton (Solicitor) Respondent: Marsdens Law Group
File Number(s):	21008 of 2011