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Osborne v Hook

Osborne v Hook

Case [2008] NSWLEC 1231 6 June 2008

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Land and Environment Court

of New South Wales

CITATION: Osborne v Hook [2008] NSWLEC 1231
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANTS
Robin & Nerida Osborne
RESPONDENTS
Edward & Antonia Hook

FILE NUMBER(S): 20146 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: Compensation - Trees (Neighbours) :-
Roots causing damage
Requirement for actual or constructive notice
Adequacy of opportunity to abate or rectify

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: P Baer investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Robson v Leischke [2008] NSWLEC 152
Briginshaw v Briginshaw (1938) 60 CLR 336

DATES OF HEARING: 6 June 2008

EX TEMPORE JUDGMENT DATE: 6 June 2008

LEGAL REPRESENTATIVES:
APPLICANTS
Ms M Carpenter, barrister
RESPONDENTS
Mr K O'Kane, solicitor
Kevin O'Kane & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

6 June 2008

08/20146 Osborne v Hook

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

1 COMMISSIONERS: Mr and Mrs Osborne live at 62 Chapman Avenue, Beecroft - a battleaxe allotment along the eastern boundary of which, at 58 Chapman Avenue, the Hooks reside.

2 There are a number of trees in the vicinity - two of which are the subject of the Osbornes’ application. The first of these is a Liquidambar (Liquidambar styraciflua) immediately adjacent to the driveway on the battleaxe element of the Osborne's property but located on the Hooks’ property and the second is a Jacaranda (Jacaranda mimosifolia) located on the Hooks’ property in the vicinity of the brick-paved area on the southern edge of the Osbornes’ house. No application is made by the Osbornes for any interference with or removal of either of these trees.

3 The hearing, to this stage, has primarily concerned itself with the damage to the driveway caused, at least in part, by the Liquidambar. The matters that we are dealing with in this decision are equally applicable to matters that would arise with respect to the claim for damage arising from roots of the Jacaranda. Although there are two Jacarandas involved and it is possible that wrong jacaranda might have been identified by the Osbornes, we are also satisfied that does not provide any basis upon which we could refuse the application as it would simply be a matter of amendment to identify the correct tree. There would be no disadvantage to the Hooks if that were to be necessary and would be permitted.

4 Equally, with respect to the Liquidambar, although there is a significant dispute between the parties about the extent to which the Liquidambar had caused damage to the Osborne's driveway (a matter which would be relevant on the question of quantification and apportionment during a damages determination), there is no dispute, for the purposes of this stage of the proceedings, that the Liquidambar had…

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 Osborne v Hook

Details

AGLC: Osborne v Hook [2008] NSWLEC 1231
Case: [2008] NSWLEC 1231
Decision Date: 6 June 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an application by Robin and Nerida Osborne against Edward and Antonia Hook regarding damage to the Osbornes' driveway allegedly caused by tree roots from trees on the Hooks' property. The primary focus of the case was the Liquidambar tree, located on the Hooks' property but adjacent to the Osbornes' driveway, which the Osbornes alleged caused damage. The hearing also considered a Jacaranda tree on the Hooks' property near the Osbornes' house, although no removal or interference was sought for this tree.

The court needed to decide whether the Hooks were required to have actual or constructive notice of the damage caused by the tree roots and whether the Osbornes provided the Hooks with adequate opportunity to abate or rectify the damage. The court also had to determine if the Osbornes' actions precluded them from claiming compensation for the damage.

The court reasoned that the Hooks did not have actual or constructive notice of the damage caused by the Liquidambar tree. The court found that the Osbornes had knowledge of the damage as early as 2004 but chose not to notify the Hooks or take any rectification measures until 2006. The court held that the Osbornes' failure to notify the Hooks or take action to rectify the damage until after significant time had passed constituted an adoption of the nuisance, thereby precluding them from claiming damages. Additionally, the court found that the Osbornes did not provide the Hooks with a reasonable opportunity to address and respond to the issues raised by the damage, as they insisted on undertaking the rectification work during their holiday when the Hooks could not effectively respond.

Based on these findings, the court concluded that the Osbornes were not entitled to compensation for the damage caused by the tree roots. The application concerning both the Liquidambar and Jacaranda trees was refused.

Orders