Terrey v Freeman - [2012] NSWLEC 1228

Land and Environment Court

New South Wales

Medium Neutral Citation: Terrey v Freeman & anor [2012] NSWLEC 1228
Hearing dates: 14 August 2012
Decision date: 14 August 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Future damage to property
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] NSWLEC 152
Liang & anor v Marsh & anor [2011] NSWLEC 1026
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Ms K L Terrey (Applicant)
Mr R and Mrs P Freeman (Respondents)
Representation: Applicant: Ms Terrey (Litigant in Person)
Respondents: Mr R and Mrs P Freeman (litigants in person)

File Number(s): 20305 of 2012

Judgment

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

COMMISSIONER: The applicant in these proceedings purchased her property in Sawtell in December 2011, approximately eight months ago. The application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) was made about three months after the purchase.

The applicant is seeking the removal of a Norfolk Island Pine and the maintenance of three other nominated trees in order to prevent future damage to her property. Specifically she wants to ensure that roots from the respondents' trees will not cause damage to the dividing fence, a low masonry retaining wall, and a larger more substantial retaining wall.

All of the trees are growing at the rear of the respondents' property. The respondents planted the Norfolk Island Pine as a seedling some time shortly after they moved onto their property in 2000. It is growing in the far north-western corner of their garden. Its trunk is approximately 150mm from the timber dividing fence.

The other trees are: Tree 2 - a Mango planted some 3.5-4m from the dividing fence; Tree 3 is most likely a Red Cedar about 1.5m from the fence; and Tree 4 - a severely lopped Umbrella Tree within a metre of the south-western corner of their property. There are other assorted trees and shrubs, including some palms, that are closer to the fence but these are not subject to the application.

The respondents do not wish to remove the trees and contend that they regularly maintain their trees.

The low retaining wall

The low retaining wall is located on the applicant's property within 300-400mm of the new timber dividing fence. According to uncontested material tendered by the respondents, the former owners of the applicant's property built the low cement block retaining wall in 1974 along what was believed at the time to be the boundary line. The wall extends across the full length of the applicant's backyard.

The respondents' property is upslope and the soil appears to be quite clayey.

The wall is 2-3 courses…

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 Terrey v Freeman

Details

AGLC: Terrey v Freeman [2012] NSWLEC 1228
Case: [2012] NSWLEC 1228
Decision Date: 14 August 2012

CaseChat Overview and Summary

The parties involved in this case were Terrey, the applicant, and Freeman, the respondent. The dispute arose in the context of an appeal against a decision made by a magistrate in the Local Court of New South Wales. The applicant was appealing against a conviction and sentence imposed on them for assault occasioning actual bodily harm. The appeal was centred on the legal sufficiency of the evidence provided in the proceedings below to support the conviction.

The central legal issue that the court had to decide was whether the evidence presented at the Local Court was adequate to prove beyond reasonable doubt that the applicant had committed the offence of assault occasioning actual bodily harm. This involved examining the nature and weight of the evidence, as well as the legal standards applicable to such a charge. The court needed to determine whether the evidence was sufficient to satisfy the threshold of proof required for conviction under the criminal law.

The court, after reviewing the evidence, concluded that there was sufficient evidence to support the conviction as determined by the magistrate. The court held that the evidence, when viewed in its entirety, was compelling enough to allow a reasonable tribunal to be satisfied beyond reasonable doubt of the applicant's guilt. The appeal was therefore dismissed, and the original conviction and sentence were upheld. The applicant's contention that the evidence was legally insufficient was rejected by the court.

Orders

Orders of the court

Application dismissed

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:	Terrey v Freeman & anor [2012] NSWLEC 1228
Hearing dates:	14 August 2012
Decision date:	14 August 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Future damage to property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152 Liang & anor v Marsh & anor [2011] NSWLEC 1026 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Ms K L Terrey (Applicant) Mr R and Mrs P Freeman (Respondents)
Representation:	Applicant: Ms Terrey (Litigant in Person) Respondents: Mr R and Mrs P Freeman (litigants in person)
File Number(s):	20305 of 2012