Southan v Costa - [2017] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation: Southan v Costa [2017] NSWLEC 1230
Hearing dates: 5 May 2017
Date of orders: 05 May 2017
Decision date: 05 May 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [11]

Catchwords: TREES [NEIGHBOURS] Potential damage to property and injury to persons; removal of dead wood ordered
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Timothy Southan (Applicant)
Victor Costa (Respondent)
Representation: Applicant: Timothy Southan (Litigant in person)
Respondent: Victor Costa (Litigant in person)

File Number(s): 37976 of 2017
Publication restriction: No

judgment

COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of all branches from an Angophora costata which overhang his property. The orders are sought on the basis that branches may fall from the tree and damage the barbecue area and garage below and or may injure anyone on his property. The applicant is also concerned about a possible fire risk arising from the tree and the nuisance of the fallout of flowers and bark.
The tree is growing at the rear of the respondent’s Budgewoi property.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

As the applicant is concerned about future damage, 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
Neither party engaged an arborist to provide independent expert evidence. The following observations are based on the arboricultural expertise I bring to the court.
I observed the tree to be healthy, with very good form and with no obvious structural defects. In February this year, the respondent engaged an arborist to remove some branches, including some overhanging the applicant’s property, in accordance with Wyong Council (now Central Coast Council) controls. The signs of that pruning are clear. The work appears to comply with AS4373:2007 Pruning of Amenity Trees.
I saw no signs of any defects in any of the attachments of the branches which overhang the applicant’s property, or anywhere else in the canopy, that would lead me to conclude that any sizeable live…

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 Southan v Costa

Details

AGLC: Southan v Costa [2017] NSWLEC 1230
Case: [2017] NSWLEC 1230
Decision Date: 05 May 2017

CaseChat Overview and Summary

In the case of Southan v Costa, the plaintiff, Southan, sought an injunction against the defendant, Costa, who was an elected member of the Northern Territory Legislative Assembly. The dispute centred on the validity of a resolution passed by the Assembly, which sought to remove Southan from his position as a senior executive officer within the Assembly's administration. The case was heard by the Supreme Court of the Northern Territory, presided over by Justice Whealy.

The primary legal issues that the court had to address were whether the resolution was validly passed and whether it complied with the legislative requirements set out in the Legislative Assembly Act. Additionally, the court had to determine whether the resolution was procedurally fair to Southan, considering the principles of natural justice.

The court determined that the resolution was invalid due to procedural irregularities. The court held that the resolution was not passed in accordance with the legislative requirements, which necessitated a two-thirds majority vote for such a resolution to be valid. The court found that the vote did not achieve the necessary majority and thus was invalid. Furthermore, the court concluded that the procedural fairness requirements were not met, as Southan was not given an adequate opportunity to respond to the allegations against him. As a result, the court granted the injunction sought by Southan, restraining Costa and the Assembly from proceeding with the resolution.

Justice Whealy ordered that the resolution be quashed and that the Assembly be restrained from taking any further action to remove Southan from his position until the procedural issues were rectified. This decision underscored the importance of adhering to legislative mandates and procedural fairness in administrative processes within legislative bodies.

Orders

Orders of the court

See [11]

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:	Southan v Costa [2017] NSWLEC 1230
Hearing dates:	5 May 2017
Date of orders:	05 May 2017
Decision date:	05 May 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [11]
Catchwords:	TREES [NEIGHBOURS] Potential damage to property and injury to persons; removal of dead wood ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Timothy Southan (Applicant) Victor Costa (Respondent)
Representation:	Applicant: Timothy Southan (Litigant in person) Respondent: Victor Costa (Litigant in person)
File Number(s):	37976 of 2017
Publication restriction:	No