Stanberg v Adams - [2010] NSWLEC 1129

Land and Environment Court

of New South Wales

CITATION: Stanberg v Adams [2010] NSWLEC 1129

PARTIES:
APPLICANT
William Stanberg
RESPONDENTS
Greg Adams
Kathy Adams

FILE NUMBER(S): 20116 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property
Compensation
Removal refused

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Buckingham v Ryder [2007] NSWLEC 458
Robson v Leischke [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 28/05/2010

DATE OF JUDGMENT:
28 May 2010

EX TEMPORE JUDGMENT DATE: 28 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
William Stanberg [litigant in person]
RESPONDENTS
Greg Adams [litigant in person]
Kathy Adams [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

28 May 2010

20116 of 2010 Stanberg v Adams

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

1 COMMISSIONER

: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Brougham Place Raby against the owners of an adjoining property.

2 The applicant is seeking the removal of 5 trees, 1 shrub and a Bougainvillea. He is also seeking compensation for the removal of the root systems of these plants from his property.

3 The applicant is also asking for compensation of $880.00, that being the amount quoted to remove and replace a section of storm water pipe that he states has been damaged by one of the respondents’ trees.

4 The applicant is seeking these orders as he contends that each of the plants has caused, or has the potential to cause, damage to his property. He specifically wants no risk to his property from the respondents’ trees, in his words, “to infinity”.

5 By way of background, the applicant moved into his property at least 20 years ago and the plants subject to this application were present at that time. The respondents have owned their property for about 12 years.

6 All of the plants are located along the eastern boundary of the respondents’ property. This property is upslope of the applicant’s. The applicant’s property has been cut into the slope to create a level building block, and is subsequently about 1m lower than the respondents’ block.

7 Along the western boundary of the applicant’s property there is a strip of land about 1m wide that approximates natural ground level. This is retained by a timber sleeper retaining wall that is more than 20 years old. A substantial section of this retaining wall is leaning towards the applicant’s house and a part of it has failed. The soil it retains is clay. The applicant is in the process of building a new retaining wall at the southern end of the property but this is only partially constructed and the timber retaining wall remains along the full extent of that boundary.

8 Each of the plants subject to this application must be considered individually,…

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 Stanberg v Adams

Details

AGLC: Stanberg v Adams [2010] NSWLEC 1129
Case: [2010] NSWLEC 1129
Decision Date: 28 May 2010

CaseChat Overview and Summary

The case of Stanberg v Adams involved a dispute between neighbours over the alleged damage to property caused by trees on an adjoining property. The applicant, William Stanberg, sought orders under section 7 of the Trees (Disputes Between Neighbours) Act 2006 for the removal of five trees, one shrub, and a Bougainvillea, as well as compensation for the removal of the root systems of these plants from his property. The respondents, Greg Adams and Kathy Adams, owners of the adjoining property, contested the application.

The primary legal issues before the court were whether the trees and plants in question had caused, were causing, or were likely to cause damage to the applicant’s property, or were likely to cause injury to any person. The court had to determine the appropriate remedy if any of these conditions were met. The application was also subject to jurisdictional issues regarding the classification of the Bougainvillea as a climbing plant, which is not considered a tree under the Act.

The court found that the applicant had failed to demonstrate that any of the trees or plants had caused or were likely to cause damage to his property within the near future, as defined by the court in Yang v Scerri. The applicant’s claims were based on speculative future damage rather than current or imminent harm. Additionally, the court noted that the applicant had not notified the respondents of the damage to the stormwater pipe, which was caused by an imperfect joint that allowed root ingress. As a result, the court refused to order the removal of any trees or plants, but did order the respondents to contribute financially towards the repair of the damaged stormwater pipe.

The court made several orders, including requiring the applicant to obtain quotes for the repair work and specifying the process for the respondents to select and pay for the preferred quote. The works were to be completed within 60 days of the date of the orders, or the payment order would lapse. The court dismissed the application to remove the trees and plants, finding that none of the statutory tests were satisfied, but ordered the respondents to contribute financially towards the repair of the damaged stormwater pipe.

Orders