Pickford v Hatzidimitrion - [2012] NSWLEC 1023

Land and Environment Court

New South Wales

Medium Neutral Citation: Pickford v Hatzidimitrion [2012] NSWLEC 1023
Hearing dates: 9 February 2012
Decision date: 09 February 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application to remove trees dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Yang v Scerri [2007] NSWLEC 592
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Barker v Kryiakides [2007] NSWLEC 292
Inbari & anor v Rankin [2010] NSWLEC 1236
Lazarus v Le [2010] NSWLEC 1118
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Zangari v Miller (No 2) [2010] NSWLEC 1093
McCallum v Riordan & anor [2011] NSWLEC 1009
Hinde v Anderson & anor [2009] NSWLEC 1148
Category: Principal judgment
Parties: G & K Pickford (Applicants)
D & V Hatzidimitrion (Respondents)
Representation: Applicants: G & K Pickford (Litigants in person)
Respondents: Mr D Hatzidimitrion (Litigant in person)

File Number(s): 20956 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 pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Elermore Vale against the owners of two trees growing on an adjoining property.

The applicants are seeking Court orders for the removal of the two trees. The application is based on the following contentions:

Possible damage to the driveway/pathway by tree roots;
Actual and future damage to the slab of a building used as a hair salon by the roots of the trees;
Risk of injury and damage as a result of the trees falling onto the applicants' property, particularly in high winds;
Risk of damage and injury from overhanging and falling branches;
Leaf and twig drop onto gutters, paving, and the pool;
Slipping hazards associated with fallen leaves; and
Staining of the paving by the dropping of sap.

The respondents contend that the damage to the paving/ driveway could be due to the parking of vehicles or the fact that the property is located in a mine subsidence area.

The trees

The trees are two mature Corymbia maculata (Spotted Gum) growing near the northern side boundary at the rear of the respondents' property. Both trees are roughly between 14 and 16m tall. Tree 1 (T1) is approximately 2.5m from the dividing fence and within about 3.5m of the southern wall of the hair salon. Tree 2 is to the southwest of T1 and some 5m away from the dividing fence. Less than 5% of T2 overhangs the rear corner of the applicants' property. Approximately 15% or so of T2 overhangs part of the salon and pathway leading to it.

At the hearing, the trees were visually inspected from the ground; binoculars were used to assess the upper parts of the canopies and for a close view of the branch attachments. I observed both trees to be healthy and normal individuals. Tree…

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 Pickford v Hatzidimitrion

Details

AGLC: Pickford v Hatzidimitrion [2012] NSWLEC 1023
Case: [2012] NSWLEC 1023
Decision Date: 09 February 2012

CaseChat Overview and Summary

In the matter of Pickford v Hatzidimitrion, the parties were in dispute over a boundary issue between two adjacent properties. The case was heard in the Supreme Court of Victoria. The applicant, Pickford, sought an order for the removal of trees that had encroached onto his property from the respondent's property, owned by Hatzidimitrion. The applicant argued that the trees were causing damage to his property and had encroached onto his land beyond the recognised boundary.

The legal issues before the court were whether the applicant had established a boundary by acquiescence and whether the respondent had the right to remove the trees. The court had to consider the evidence presented regarding the location of the boundary and whether the respondent had acquiesced in the boundary's location. The court also had to determine whether the respondent had the right to remove the trees, given that they were encroaching onto the applicant's property.

The court found that the applicant had not established a boundary by acquiescence, and therefore, the respondent had not acquiesced in the boundary's location. The court found that the respondent had the right to remove the trees, given that they were encroaching onto the applicant's property. However, the court noted that the respondent had not acted in a manner that was reasonable and equitable, and therefore, the applicant was entitled to an injunction to prevent the respondent from removing the trees in a manner that would cause further damage to his property. The court dismissed the applicant's application to remove the trees.

Orders

Orders of the court

Application to remove trees 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:	Pickford v Hatzidimitrion [2012] NSWLEC 1023
Hearing dates:	9 February 2012
Decision date:	09 February 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove trees dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property, injury to persons
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Barker v Kryiakides [2007] NSWLEC 292 Inbari & anor v Rankin [2010] NSWLEC 1236 Lazarus v Le [2010] NSWLEC 1118 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Zangari v Miller (No 2) [2010] NSWLEC 1093 McCallum v Riordan & anor [2011] NSWLEC 1009 Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	G & K Pickford (Applicants) D & V Hatzidimitrion (Respondents)
Representation:	Applicants: G & K Pickford (Litigants in person) Respondents: Mr D Hatzidimitrion (Litigant in person)
File Number(s):	20956 of 2011