Turner v O'Donnell - [2009] NSWLEC 1349

Land and Environment Court

of New South Wales

CITATION: Turner v O'Donnell [2009] NSWLEC 1349

PARTIES:
APPLICANT
Ken Turner
RESPONDENT
John O'Donnell

FILE NUMBER(S): 20488 of 2009

CORAM: Fakes AC

KEY ISSUES: TREES (NEIGHBOURS) :- removal of tree; damage to property; injury to person(s).

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 9 October 2009

EX TEMPORE JUDGMENT DATE: 9 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ken Turner (litigant in person)
RESPONDENT
John O'Donnell (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

9 October 2009

20488 of 2009 Ken Turner v John O’Donnell

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

1 COMMISSIONER: This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Ken Turner of 35 Gellatly Avenue Figtree against the owner of a eucalypt growing at 159 Jacaranda Avenue Figtree. The owner of that property is Mr John O’Donnell.

2 The applicant is seeking the removal of the tree as he contends that the tree has caused, and will continue to cause, damage to his property. He also claims that he was injured by the tree and that further injury may occur. Mr Turner is also seeking compensation for items he states have been damaged by the tree, specifically: $875 for a spa pool cover, $79.95 for a shirt and $4,598 for the replacement of the roof of the spa. He is also seeking compensation for the cost of the application fee.

3 Dealing with the last item, Commissioners do not have the jurisdiction to award costs in these matters.

4 The tree is most likely a Eucalyptus punctata (Grey Gum). It was inspected from both properties and binoculars were used to view the upper sections of the canopy. It is a healthy specimen with less than 5% dead wood. It is growing on the north-eastern boundary of the respondent’s property in a retained garden bed. It is not clear as to whether the tree was planted or is a remnant of the original vegetation. The respondent’s property is up slope of the applicant and part of the tree’s canopy overhangs the applicant’s garden and outdoor spa.

5 Mr O’Donnell has resided at 159 Jacaranda Avenue for 14 years and the tree was well established when he moved in. The applicant purchased his property seven years ago and was aware of the presence of the tree.

6 The respondent sought permission from Wollongong Council to remove the tree as part of a development application for a garage. The development application was refused for several reasons as was the removal of the tree.

7 The applicant is seeking the removal of the tree partly because of damage to property. In January 2008 it is alleged that a branch fell from the tree and pierced a hole in a shirt that was hanging…

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 Turner v O'Donnell

Details

AGLC: Turner v O'Donnell [2009] NSWLEC 1349
Case: [2009] NSWLEC 1349
Decision Date: 9 October 2009

CaseChat Overview and Summary

In Turner v O'Donnell, Ken Turner applied to the Land and Environment Court of New South Wales for the removal of a eucalypt tree on the neighbouring property of John O'Donnell. Turner claimed the tree had caused damage to his property and injured him. The key legal issues revolved around whether the tree had caused, was causing, or was likely to cause damage or injury, and if so, what orders the Court should make under the Trees (Disputes Between Neighbours) Act 2006.

The Court examined the evidence of damage and injury presented by Turner. Turner claimed that a branch from the tree fell and damaged his shirt and spa cover, and that sap from the tree had accumulated to the point of causing damage to the spa. Turner also claimed that he was struck by a falling branch and suffered from sinusitis due to the tree's pods. The Court considered whether these claims met the threshold criteria under section 10(2) of the Act for the Court to make an order. The Court noted that while there was evidence of some damage, there was no evidence that the tree was likely to cause serious damage or injury in the near future.

The Court held that the application did not meet the statutory threshold for removal of the tree. The Court found that the claims of damage to property and injury were not sufficiently serious to warrant the Court intervening. However, the Court did order that O'Donnell must engage an arborist to remove all dead wood down to 20mm in diameter from the tree, in compliance with relevant standards and codes, and that this work must be carried out every three years. Turner's claims for compensation were also refused as he did not notify O'Donnell of the damage or injury, denying O'Donnell the opportunity to take remedial steps.

In summary, the Court refused Turner's application to remove the tree but ordered O'Donnell to regularly prune the dead wood from the tree. The Court also refused Turner's claims for compensation.

Orders