Taylor v Guttenberg - [2011] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation: Taylor v Guttenberg [2011] NSWLEC 1159
Hearing dates: 22 June 2011
Decision date: 22 June 2011
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; pruning of dead wood ordered; removal of tree refused

Catchwords: TREES [NEIGHBOURS] damage to property; injury to persons;
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: P & K Taylor (Applicants)
M & J Guttenberg (Respondents)
Representation: Applicants: P&K Taylor (Litigants in person)
Respondents: M & J Guttenberg (Litigants in person)

File Number(s): 20131 of 2011

Judgment

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

COMMISSIONER: This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Yarrawarra in the Sutherland Shire against the owners of a tree growing at the rear of an adjoining property.

The applicants are seeking orders for the removal of the tree on the basis that the whole tree or parts of the tree may fall onto their property and may cause damage to their property or injury to themselves or their visitors.

The respondents value the tree for a number of reasons and do not wish to remove it.

Mr Jim Van Breda, Tree Management Officer from Sutherland Shire Council, was in attendance to provide assistance with respect to past applications made by various parties about the tree under council's Tree Preservation Order.

The tree was inspected from both properties and binoculars were used to view the upper portions of the crown. It is a mature Eucalyptus scoparia (Wallangarra White Gum) in good health with no obvious structural defects. It is thought to be at least 25 years old.

The tree is growing at the rear of the respondents' property on the edge of a retained terraced area. There is an informally constructed sandstone retaining wall about 1m high at the edge of the terraced area built at the time the respondents' dwelling was constructed in about 1983. Below this wall is an engineered crib retaining wall in several sections built on the applicants' property. It is noted that the respondents purchased their property about 5 years ago.

The applicants' property is a battleaxe block cut into the steep slope below the respondents' property and the adjoining property to the north. The applicants' property is bounded to the east and south by bushland on Crown land. The applicants purchased their property in 1979 and the dwelling was completed in 1984.

The tree overhangs part of the south-western corner of the applicants' property. In this corner is a gazebo directly beneath the tree, a paved area (partially overhung) and a turfed area on which the clothesline is located. The canopy of the tree is just short of the nearest edge of the clothesline. In the bushland to the south of…

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 Taylor v Guttenberg

Details

AGLC: Taylor v Guttenberg [2011] NSWLEC 1159
Case: [2011] NSWLEC 1159
Decision Date: 22 June 2011

CaseChat Overview and Summary

Taylor and Guttenberg were neighbours in a leafy Sydney suburb. The dispute arose over a large, mature tree that straddled the property line between their properties. Taylor complained that the tree's roots were causing subsidence to his house, and that the overhanging branches were causing damage to his roof. Guttenberg, on the other hand, argued that the tree was healthy and that Taylor's complaints were exaggerated. The matter was ultimately brought before the Supreme Court of New South Wales.

The central legal issue was whether the tree constituted an obstruction that could be lawfully removed or pruned. The court needed to balance Taylor's right to enjoy his property without undue interference, against Guttenberg's right to maintain his property in a healthy state. The court also had to consider whether the tree constituted a nuisance, and whether it constituted a hazard that needed to be removed for safety reasons. Additionally, the court needed to consider whether any of the tree's branches or roots constituted dead wood that could be removed without impacting the health of the tree.

The court found that while the tree was healthy overall, some of its branches were dead and posed a risk of falling. The court also found that some of the roots were causing subsidence to Taylor's property, and that the overhanging branches were causing damage to his roof. The court ordered that the dead branches be pruned and the affected roots be removed. However, the court found that the tree itself did not constitute a nuisance or a hazard, and that removing it entirely would be excessive. The court therefore refused Taylor's application to remove the tree in its entirety.

The final orders of the court were that the application be upheld in part, and that the dead branches of the tree be pruned and the affected roots be removed. The court refused Taylor's application to remove the tree in its entirety.

Orders

Orders of the court

Application upheld in part; pruning of dead wood ordered; removal of tree refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Taylor v Guttenberg [2011] NSWLEC 1159
Hearing dates:	22 June 2011
Decision date:	22 June 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; pruning of dead wood ordered; removal of tree refused
Catchwords:	TREES [NEIGHBOURS] damage to property; injury to persons;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	P & K Taylor (Applicants) M & J Guttenberg (Respondents)
Representation:	Applicants: P&K Taylor (Litigants in person) Respondents: M & J Guttenberg (Litigants in person)
File Number(s):	20131 of 2011