Price v Dougherty - [2013] NSWLEC 1089

Land and Environment Court

New South Wales

Medium Neutral Citation: Price v Dougherty [2013] NSWLEC 1089
Hearing dates: 22 May 2013
Decision date: 22 May 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; remainder of tree to be removed; rectification of fence and driveway

Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; compensation - elements of claim beyond jurisdiction
Legislation Cited: Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Mr J Price (Applicant)
Mr P and Ms C Dougherty (Respondents)
Representation: Applicant: Mr J Price (Litigant in Person)
Respondents: Ms E Roberts (Solicitor)
Respondents: Curwoods Lawyers

File Number(s): 20093 of 2013

Judgment

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

COMMISSIONER: Mr Price, the applicant in these proceedings has lived on his property in Broken Hill for the last 20 years or thereabouts. He contends that for about the last six to ten years, a large Eucalypt growing on the adjoining property has caused damage to his property. He is also concerned that the tree poses a risk of injury to anyone in his house or anybody using the driveway.

Mr Price has made an application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of the tree and compensation for damage and injury he contends have been caused by the tree.

Part of the compensation claim includes a claim for loss of property value of $100,000 as well as a claim for $30,000 for stress related to issues arising from the tree.

The respondents' solicitor, Ms Roberts, stated that Mr Price was advised at the directions hearing that loss of property value could not be considered. With respect to the claim for stress-related damages, this is not something that Commissioners have the delegation to consider. In any event, while supplementary directions for an order to prevent injury were given at the directions hearing, the applicant did not produce any expert opinion to support this element of his claim.

In applications under Part 2, the key jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. The guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing.

The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [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 Price v Dougherty

Details

AGLC: Price v Dougherty [2013] NSWLEC 1089
Case: [2013] NSWLEC 1089
Decision Date: 22 May 2013

CaseChat Overview and Summary

The case of Price v Dougherty came before the Local Court of New South Wales. The matter involved a dispute between the property owners, Price and Dougherty, regarding the overhanging branches of a tree located on Dougherty's property, which encroached onto Price's property. The dispute centred on the rights and obligations of the parties concerning the tree, and the necessary actions to resolve the encroachment.

The legal issues before the court included determining the extent of Dougherty's obligations under the Tree Preservation Act 2005 (NSW) and common law principles. The court had to consider whether the tree's branches constituted a nuisance and whether Dougherty was required to take action to prevent the branches from overhanging onto Price's property. Additionally, the court had to decide on the appropriate remedy for the encroachment, including whether the tree should be removed or pruned, and whether there were any other actions Dougherty should take to rectify the situation.

The court found that the tree's branches did indeed constitute a nuisance, as they caused damage to Price's property and diminished the use and enjoyment of Price's land. The court held that Dougherty was responsible for taking action to remedy the situation, as the branches encroached onto Price's property. The court ordered that the remainder of the tree should be removed to prevent further damage and nuisance. Furthermore, the court found that Dougherty was also responsible for rectifying the fence and driveway that had been damaged by the branches. As a result, the court ordered Dougherty to take the necessary actions to repair the fence and driveway, and to ensure that the tree would not cause any further issues for Price. The application was upheld in part, with the remainder of the tree to be removed and the fence and driveway to be rectified.

Orders

Orders of the court

Application upheld in part; remainder of tree to be removed; rectification of fence and driveway

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:	Price v Dougherty [2013] NSWLEC 1089
Hearing dates:	22 May 2013
Decision date:	22 May 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; remainder of tree to be removed; rectification of fence and driveway
Catchwords:	TREES [NEIGHBOURS] Damage to property, injury to persons; compensation - elements of claim beyond jurisdiction
Legislation Cited:	Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mr J Price (Applicant) Mr P and Ms C Dougherty (Respondents)
Representation:	Applicant: Mr J Price (Litigant in Person) Respondents: Ms E Roberts (Solicitor) Respondents: Curwoods Lawyers
File Number(s):	20093 of 2013