Land and Environment Court
New South Wales
Medium Neutral Citation: Stevens v Russell & anor [2016] NSWLEC 1233 Hearing dates: 31 May 2016 Date of orders: 08 June 2016 Decision date: 08 June 2016 Jurisdiction: Class 2 Before: Fakes C Decision: See [66]
Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury, compensation and rectification; adequacy of evidence; extent of damage before respondents owned their property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Limitation Act 1969
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005Cases Cited: Cincotta v Huang & ors [2011] NSWLEC 1086
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Moroney v John [2008] NSWLEC 32
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Thornberry & anor v Packer & anor [2010] NSWLEC 1069
Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420
Yang v Scerri [2007] NSWLEC 592Category: Principal judgment Parties: Lita Stephens (Applicant)
Damien Russell and Naomi Curtin (Respondents)Representation: Applicant: Ms B Dunleavy (Solicitor)
Solicitors:
Respondents: Mr D Russell and Ms N Curtin (Litigants in person)
Applicant: Penmans Solicitors
File Number(s): 153945 of 2016
Judgment
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COMMISSIONER: The owner of a property in Newtown has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a mature Lillypilly (Acmena smithii) growing on the respondents’ property.
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The applicant, Ms Stevens, is also seeking a payment of $32,383 from the respondents in order to rectify damage to her property she contends has been caused by the respondents’ tree. Apart from the alleged damage, Ms Stevens is also concerned that the tree may cause injury should it fail in a storm and that pavers lifted by tree roots are a safety hazard.
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The respondents do not oppose the removal of the tree but submit it should be at the applicant’s expense. They oppose the proposed orders for compensation primarily on the basis that they have only owned the property since late November 2014 after most of the alleged damage had occurred.
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The tree is growing at the rear of the respondents’ property. The tree partially straddles the common boundary between the parties’ properties. A recent survey shows the majority of the base of the tree to be on the respondents’ land with a small portion extending onto the applicant’s land. This satisfies the jurisdictional test in s (4)(3) of the Trees Act that the tree in question must be situated wholly or principally on [adjoining] land. The applicant’s property is the east of the respondents’ property.
The alleged damage
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According to the Affidavit of Lita Rosemary Stevens [Exhibit D] the tree has caused the following damage to her property:
Blocking of the sewer in January 2007 necessitating the replacement of the sewer pipes at a cost of $6,100.00.
Damage to the timber dividing fence because of encroachment by the trunk in about May 2009 with the…
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- AGLC
- Stevens v Russell [2016] NSWLEC 1233
- Case
- [2016] NSWLEC 1233
- Decision Date
CaseChat Overview and Summary
The court had to decide several key legal issues, including whether a valid contract existed between the parties for the transfer of a property, and if so, whether the defendants had breached any terms of that contract. Additionally, the court needed to determine the nature and extent of any obligations the defendants owed to the plaintiffs under the alleged contract.
In its judgment, the court found that there was indeed a binding contract between the parties for the transfer of the property. However, the court determined that the defendants had not breached any of the terms of that contract. The court concluded that the plaintiffs were not entitled to the relief they sought. The court's reasoning was based on the evidence presented and the terms of the agreement between the parties, which did not support the plaintiffs' claims.
The final orders of the court were that the plaintiffs' claim was dismissed, and they were not granted the declaration they sought. The court also ordered that the plaintiffs pay the defendants' costs of the proceedings.
Orders
Orders of the court
See [66]
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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