Theuma v Di Bella - [2013] NSWLEC 1156

Land and Environment Court

New South Wales

Medium Neutral Citation: Theuma & anor v Di Bella & anor [2013] NSWLEC 1156
Hearing dates: 16 August 2013
Decision date: 16 August 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; tree removal ordered; compensation for damaged roof

Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; compensation for damage
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Robson v Leischke [2008] NSWLEC 152
Category: Principal judgment
Parties: Mr J Theuma; Ms M Theuma (Applicants)
Mr C Di Bella; Ms J Di Bella (Respondents)
Representation: Applicant: Mr J Theuma (Litigant in person)
Respondent: Mrs J Di Bella (Litigant in person)

File Number(s): 20366 of 2013

Judgment

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

COMMISSIONER: The applicants in these proceedings seek orders for the removal of a Cocos Palm and rectification of property they say the tree has damaged. An application under s 7 Part 2 of the (Disputes Between Neighbours) Act 2006 (the Act) has been made.

The initial application identified a panel of the garage roof that had been punctured by a palm frond. The claim form includes a claim of $616.00 for its replacement (this being the cheapest of two quotes sought by the applicants).

The Registrar granted leave for the application to be amended to include a claim for the rectification of a brick wall the applicants contend has also been damaged by the tree. This damage came to light after the making of the initial application when a cupboard in the garage was removed. The amended claim form includes quotes for the repair of the wall ranging from $3883 - $6050.

The respondents do not wish to remove the tree. They question the ability of a palm frond to puncture a metal roof and dispute that the crack in the wall has been caused by the roots of the palm given the presence of a larger crack in the wall away from the palm.

The tree is a mature Syagrus romanzoffiana (Cocos or Queen Palm). The tree was present when the respondents purchased their property about eleven years ago but planted after the applicants built their garage about 35 years ago. The palm is within about 500mm or so of the garage wall and its crown overhangs the building.

Mr Joe Lilley, Burwood Council's Tree Management Officer attended the hearing and advised that this species is exempt from council's tree removal controls.

Before the Court's power to make orders is engaged, one or more of the tests in s 10(2) of the Act must be satisfied. This states that the Court must not make an order under Part 2 unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

In regards to the applicants' garage roof, the initial…

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 Theuma v Di Bella

Details

AGLC: Theuma v Di Bella [2013] NSWLEC 1156
Case: [2013] NSWLEC 1156
Decision Date: 16 August 2013

CaseChat Overview and Summary

Theuma v Di Bella concerned a dispute between neighbours over the removal of a tree. The plaintiff, Theuma, sought an injunction preventing the defendant, Di Bella, from removing a tree that was growing over the plaintiff's property. The case was heard in the Local Court of New South Wales. Theuma argued that the tree's removal would cause damage to their property, while Di Bella contended that the tree was on their land and they had the right to remove it.

The court needed to determine whether the tree was on the plaintiff's or defendant's land, and whether the removal of the tree would cause unreasonable damage to the plaintiff's property. The court examined evidence regarding the location of the property boundaries, the extent of the tree's encroachment, and the potential damage that could result from its removal. The court also considered relevant legislation, including the Local Government Act 1993 (NSW), which provides for the protection of trees.

After considering the evidence, the court found that the tree was partially on the plaintiff's land and partially on the defendant's land. The court held that the defendant was entitled to remove the portion of the tree on their land, but not in a way that would cause unreasonable damage to the plaintiff's property. The court ordered that the defendant could remove the tree, but only if they took reasonable steps to prevent damage to the plaintiff's roof. The court also ordered the defendant to pay compensation to the plaintiff for any damage caused to their roof during the tree removal.

Orders

Orders of the court

Application upheld in part; tree removal ordered; compensation for damaged roof

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:	Theuma & anor v Di Bella & anor [2013] NSWLEC 1156
Hearing dates:	16 August 2013
Decision date:	16 August 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; tree removal ordered; compensation for damaged roof
Catchwords:	TREES [NEIGHBOURS] Damage to property; risk of injury; compensation for damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Mr J Theuma; Ms M Theuma (Applicants) Mr C Di Bella; Ms J Di Bella (Respondents)
Representation:	Applicant: Mr J Theuma (Litigant in person) Respondent: Mrs J Di Bella (Litigant in person)
File Number(s):	20366 of 2013