Smith v Sheehan - [2008] NSWLEC 1243

Land and Environment Court

of New South Wales

CITATION: Smith v Sheehan [2008] NSWLEC 1243

PARTIES:
APPLICANTS
Joyce and Claude Smith
RESPONDENT
Courtney Sheehan

FILE NUMBER(S): 20226 of 2008

CORAM: Fakes AC

KEY ISSUES: Trees (Neighbours) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292
Dooley & anor v Nevell [2007] NSWLEC 715

DATES OF HEARING: 13 June 2008

EX TEMPORE JUDGMENT DATE: 13 June 2008

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

13 June 2008

20226 of 2008 Joyce and Claude Smith v Courtney Sheehan

JUDGMENT

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

Trees (Disputes Between Neighbours) Act 2006.

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Smith of 35 Pitt Street Coffs Harbour concerning a tree located on a property owned by Ms Sheehan of 33 Pitt Street Coffs Harbour.

2 The tree is a mature Corymbia torrelliana [syn. Eucalyptus torrelliana] or Cadaga. It is located at the rear of 33 Pitt Street and within 1 metre of the boundary fence between the two properties. It partially overhangs a cement block garage with a cement slab flat roof on which the clothesline is located.

3 The applicants are seeking the removal of the tree as they contend that the leaves and other debris falling from the tree create a mess on the garage roof which limits water draining off the roof. They are also concerned about the ‘soot’ from the leaves dirtying their washing. They also contend that the tree has caused cracking of the northern and western walls of the garage and damage to a concrete path.

4 The applicants are also seeking compensation for the repairs to the garage walls and the path. The amount sought is $2,267.00 that being a quote for the proposed works. They stated that they would only proceed with the claim for compensation if the tree was not ordered to be removed.

5 The respondent does not want the tree removed as she values the shade and amenity it provides for her and her family.

6 The tree was inspected from both properties. On the respondent’s side it was noted that the tree is mature and in good health. It has co-dominant stems with a minor bark inclusion that is not considered to be significant…

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 Smith v Sheehan

Details

AGLC: Smith v Sheehan [2008] NSWLEC 1243
Case: [2008] NSWLEC 1243
Decision Date: 13 June 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Smith v Sheehan was heard by Acting Commissioner Fakes. The applicants, Joyce and Claude Smith, sought the removal of a tree on the property of the respondent, Courtney Sheehan. The tree, a Corymbia torrelliana, was located near the boundary of the two properties and was causing issues for the applicants due to leaves and debris falling onto their garage roof and path. The applicants also sought compensation for damages allegedly caused by the tree. The respondent opposed the removal of the tree, valuing it for the shade and amenity it provided.

The key legal issue before the Court was whether the tree had caused, was causing, or was likely to cause damage to the applicants’ property, warranting its removal or intervention under the Trees (Disputes Between Neighbours) Act 2006. The Court had to consider various factors, including the location of the tree, its contribution to the local ecosystem, and the evidence of damage presented by both parties.

The Court found that the tree was located entirely on the respondent's property and made contributions to the local ecosystem and biodiversity. Although the tree was not a local species, it provided shade and was visited by birds and possums. The Court also noted that the tree was in good health and had been pruned in 2000, which would limit its impact on the applicants' property. Furthermore, the engineer's report indicated that the damage to the garage and path was likely due to factors other than the tree, such as the age of the structure, shrinkage of the concrete, and changes in the moisture content of the soil.

Given that the applicants did not provide evidence that the tree caused the damage to their property and could not dispute the findings of the engineer, the Court was not satisfied that the tree had caused, was causing, or was likely to cause damage in the near future. Therefore, the Court refused the application to remove the tree and the application for compensation. However, the Court did record an agreement between the parties that the applicants could prune branches that overhang their garage, provided certain conditions were met, including engaging a qualified arborist and obtaining the respondent's approval.

Orders