Roberts v Denham - [2010] NSWLEC 1269

Land and Environment Court

of New South Wales

CITATION: Roberts v Denham [2010] NSWLEC 1269

PARTIES:
APPLICANT
Mrs D Roberts
RESPONDENTS
Mr M Denham
Mrs M Denham

FILE NUMBER(S): 20497 of 2010

CORAM: Fakes C - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to footings, retaining wall, paving, guttering
Risk of injury to persons
No evidence of nexus between tree and damage
Pruning ordered; removal refused

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 30/09/2010

DATE OF JUDGMENT:
11 October 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mrs D Roberts [litigant in person]
RESPONDENTS
Mr and Mrs Denham [litigants in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C
Hewett AC

11 October 2010

20497 of 2010 Roberts v Denham
JUDGMENT

1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Winmalee against the owners of a tree growing on an adjoining property.

2 The applicant is seeking the removal of the tree as she contends that it has caused damage to her property and will continue to do so. She is also concerned that falling branches or the failure of the entire tree could cause injury to anyone in the house should this happen.

3 The tree is a mature eucalypt identified in Blue Mountains City Council (the council) documents as Eucalyptus eugenioides (Thin-leaved Strinybark) and alternatively as E. microcorys (Tallowwood) (we consider the former to be more likely). It is growing within 2-3m to the west of the applicant’s house approximately 700mm above the level of the applicant’s property.

4 The applicant contends that the tree has caused the following damage to her property:

Displacement of the foundations of the house under a glass sliding door on the western side of the house in proximity to the tree,
Breaking of terracotta floor tiles lining the sliding door,
Cracking and displacement of concrete block retaining walls,
Separation of joints of brick columns that support a pergola,
Rusting through of guttering on the house,
Lifting of paving under the pergola, and
Puncturing of previous fibreglass panels on the pergola.

5 It is the proximity of the tree to these structures that has led the applicant to assume that the damage is caused by the tree. The applicant is seeking compensation of an estimated sum of $20,000 for repair of this damage.

6 The respondents state that they have applied to Blue Mountains City Council three times to have the tree removed. Permission has been granted on each occasion but either financial issues or the lapsing of the permit have prevented the tree being removed. Permission has been recently given for the removal of the tree. The respondents contend that the applicant has produced no evidence or reports to prove that their tree has caused damage to the applicant’s property.

7 The on-site hearing commenced with a…

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 Roberts v Denham

Details

AGLC: Roberts v Denham [2010] NSWLEC 1269
Case: [2010] NSWLEC 1269
Decision Date: 11 October 2010

CaseChat Overview and Summary

In Roberts v Denham, the applicant sought the removal of a mature eucalypt tree growing on an adjoining property, claiming that it had caused damage to her property and posed a risk of injury. The respondents argued that there was no evidence linking the tree to the damage and that the applicant had not proven the necessary nexus. The case hinged on whether the tree had indeed caused the damage claimed and if it posed a risk of injury, as required by the Trees (Disputes Between Neighbours) Act 2006.

The court examined the evidence presented by the applicant, including photographs and expert opinion, but found that the applicant had not provided sufficient proof to establish a direct connection between the tree and the damage. The court observed that the applicant's assumptions were based on the proximity of the tree to the damaged structures but acknowledged that other factors, such as soil conditions and the age of the retaining walls, could have contributed to the damage. Regarding the risk of injury, the court noted that while the tree had some dead wood, there was no evidence that any substantial part of the tree was likely to fail and cause harm.

Consequently, the court found that the applicant had not met the burden of proof to warrant the removal of the tree. However, the court did order that the respondents engage a qualified arborist to remove all dead wood from the tree, as falling dead wood could potentially cause damage. The court emphasised the importance of maintaining trees for their ecological and aesthetic value while also ensuring safety.

In summary, the court dismissed the application for tree removal and compensation but mandated the removal of dead wood to mitigate potential risks. This decision underscores the need for a clear demonstration of harm caused by a tree to justify its removal under the Act.

Orders