Reuben v Lace - [2010] NSWLEC 1024

Land and Environment Court

of New South Wales

CITATION: Reuben v Lace [2010] NSWLEC 1024

PARTIES:
APPLICANT
T Reuben
RESPONDENTS
R & R Lace

FILE NUMBER(S): 20732 of 2009

CORAM: Moore SC - Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Yang v Scerri [2007] NSWLEC 592
Black v Johnson (No 2) [2007] NSWLEC 513

DATES OF HEARING: 27 January 2010

EX TEMPORE JUDGMENT DATE: 27 January 2010

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENTS
Ms L Lace, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

27 January 2010

20732 of 2009 Reuben v Lace

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

1 SENIOR COMMISSIONER: In October 2009, Ms Reuben lodged an application with the Court concerning a number of trees located on the adjacent property owned by Mr and Mrs Lace. There are a number of procedural matters that arise that require to be dealt with prior to turning our attention to the merits of the matter.

2 The first of these is that the property is jointly owned by Mr and Mrs Lace and Mrs Lace has been, at all relevant times, a patient in a mental health institution and unable to take any informed part of the court process. When the matter was initially drawn to my attention, at the call-over hearing, Mr Lace was represented by his daughter and it was suggested, at that time, that the question of Mrs Lace's participation would be dealt with at the time of the on-site hearing in light of her then circumstances and whether or not any guardian had been appointed to represent her separate interests in the proceedings.

3 Since that time, no formal guardianship has been entered into and, as a consequence, we are satisfied that, to the extent that Mrs Lace has an interest in the proceedings, that interest is coincidental with that of Mr Lace and is adequately represented by their daughter who has authority to speak on Mr Lace’s behalf. We have therefore proceeded to hear and determine the matter today on the basis that it is appropriate, as the application papers have been served on Mr Lace, that orders of the Court that might be made can bind him and his wife (given the coincidence of their interests in the proceedings).

4 The second matter, with which we need to deal, is the fact that it is quite clear from the application that was made by Ms Reuben, that the basis of the application was made of a risk of injury to persons. The directions that were made on 16 November clearly reflect that, as for any matters relating to compensation for property and the like, Standard Directions 6 and 7 would have been made but were not required to be made.

5 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 Reuben v Lace

Details

AGLC: Reuben v Lace [2010] NSWLEC 1024
Case: [2010] NSWLEC 1024
Decision Date: 27 January 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Reuben v Lace involved a dispute over trees on the adjacent property owned by Mr and Mrs Lace. Ms Reuben, the applicant, sought orders for the removal of certain trees that she believed posed a risk to her property and safety. The legal issues the court needed to decide included whether the application could be amended to include orders for the rectification of the fence, and whether the trees in question posed a significant risk of injury or damage to property.

The court determined that Ms Reuben's request to amend her application to include orders for fence rectification was not permissible as it was not properly notified to the respondents, and there had been adequate opportunity for her to make the amendment. The court also found that the two Casuarina trees did not pose a significant risk of injury or damage to property, and therefore dismissed the application to remove them. However, the court found that the eucalypt tree closest to the street posed a risk of injury to persons and ordered its removal. The court held that Mr and Mrs Lace should bear the cost of removal and granted a 90-day period for the removal to be completed.

The final orders of the court were that the application to remove the eucalypt was upheld, the application to remove the Casuarinas was dismissed, and the respondents were to engage and pay for an arborist to remove the eucalypt within 90 days from the date of the hearing.

Orders