Tuft v Piddington - [2008] NSWLEC 1249

Land and Environment Court

of New South Wales

CITATION: Tuft v Piddington [2008] NSWLEC 1249

PARTIES:
APPLICANT
Carol Tuft
RESPONDENTS
Winston & Kerri Piddington

FILE NUMBER(S): 20179 of 2008

CORAM: Moore C - Thyer AC

KEY ISSUES: Jurisdiction - Trees (Neighbours) :-
Meaning of "injury"
Asthma is an "injury"

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Act 1987
Pesticides Act 1999

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 3 June 2008

EX TEMPORE JUDGMENT DATE: 3 June 2008

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENTS
Second respondent in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

3 June 2008

08/20179 Carol Tuft v Winston & Kerri Piddington

JUDGMENT

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

1 COMMISSIONERS: Located in the rear yard of 48 Bryant St, Tighes Hill is a substantial Caffir Plum (Harperphyllum caffrum). The tree has two major trunks in its structure effectively forming co-dominant leaders. The tree flowers during spring and summer and produces numerous small fruits.

2 The tree is owned by Mr and Ms Piddington who do not intend to reside at the property in the near future but hope to return to Newcastle when Mr Piddington is able to obtain appropriate employment in Newcastle (as he is presently temporarily located in Sydney). The Piddingtons intend to make the property where the tree is located their permanent home in Newcastle.

3 Ms Tuft asks that the Court order the removal of the tree for two reasons. These are risks of injury to her and what she considers to be anticipated future damage to her property.

4 As a consequence, there are three matters concerning the tests set by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 which we must consider. We must be satisfied that at least one of these tests is met before we have jurisdiction to consider whether or not, as a matter of discretion, we should order at any interference with or removal of the tree.

5 The first basis upon which Ms Tuft seeks the order is as a consequence of an allergic reaction she has to the pollen which comes from the tree.

6 In this regard, Ms Tuft provided two medical certificates. The first is a certificate from her general practitioner which is inconclusive about the cause of her allergy. However, the second is a certificate from Dr Charles Finlay-Jones, an ear nose and throat specialist, who has certified that Ms Tuft suffers from severe allergic bronchitis and rhinitis and [indecipherable] allergy to Caffir Plum tree which is a native of Africa. The tree which is the subject of Ms Tuft’s application, as earlier noted, is a Caffir Plum.

7 For the test under section 10(2)(b) of the Act to be satisfied – that is that the tree is a likely cause…

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 Tuft v Piddington

Details

AGLC: Tuft v Piddington [2008] NSWLEC 1249
Case: [2008] NSWLEC 1249
Decision Date: 3 June 2008

CaseChat Overview and Summary

Carol Tuft applied to the Land and Environment Court of New South Wales seeking an order for the removal of a Caffir Plum tree located on the property of Winston and Kerri Piddington. The tree is in the rear yard of the Piddingtons' property, and the Piddingtons intend to return to it as their permanent home in Newcastle. Tuft sought the removal of the tree on the grounds of the risk of injury to her and anticipated damage to her property. The Court was required to determine whether it had jurisdiction to consider Tuft's application under section 10(2) of the Trees (Disputes Between Neighbours) Act 2006 and, if so, whether it should exercise its discretion to order the removal of the tree.

The Court first considered whether Tuft's allergic reaction to the tree's pollen constituted an "injury" for the purposes of the Act. The Act does not define "injury," but the Court looked to other statutes to determine whether an allergic reaction could be considered an injury. The Court found that, based on definitions in the Workplace Injury Management and Workers Compensation Act 1998, the Workers Compensation Act 1987, and the Pesticides Act 1999, allergic reactions could be considered an injury. The Court was satisfied that the allergic reaction Tuft experienced constituted an injury, thus giving the Court jurisdiction to consider her application under section 10(2)(b) of the Act.

After determining it had jurisdiction, the Court considered whether it should exercise its discretion to order the removal of the tree. The Court considered several factors, including the social value of the tree to the Piddingtons, its contribution to the local ecosystem, and Tuft's history of asthma. The Court found that the positive aspects of the tree outweighed Tuft's complaints and decided not to order the removal of the tree based on her allergic reaction. The Court also found that there was no likelihood of the tree failing and causing injury to anyone, and that the risk of damage to Tuft's property was remote. Therefore, the Court dismissed Tuft's application.

In conclusion, the Land and Environment Court dismissed Carol Tuft's application for the removal of the Caffir Plum tree on the Piddingtons' property, finding that the allergic reaction Tuft experienced constituted an injury under the Trees (Disputes Between Neighbours) Act 2006 but that the Court should not exercise its discretion to order the tree's removal.

Orders