Wazrin Pty Ltd v Pearson - [2009] NSWLEC 1420

Land and Environment Court

of New South Wales

CITATION: Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420

PARTIES:
APPLICANT
Wazrin Pty Ltd
RESPONDENT
Stuart Pearson

FILE NUMBER(S): 20725 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Removal of tree, Damage to property and injury to people

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 11 December 2009

EX TEMPORE JUDGMENT DATE: 11 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ms L Wren (agent)
RESPONDENT
Mr S Pearson (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

11 December 2009

20725 of 2009 Wazrin Pty Ltd v Stuart Pearson

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 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Wazrin Pty Ltd, the owners of a residential flat building at 2 Ethel Street Randwick, against the owner of a palm tree growing at the rear of 56 Howard Street Randwick. The owner of that property is Dr Stuart Pearson.

2 The applicant was represented by Ms Lauren Wren, Senior Property Manager, Raine and Horne Randwick and assisted by Mr Terry Brandtman, Manager, Raine and Horne Randwick. Also in attendance were Mr Bryan Bourke, Tree Management Officer, and Mr Robert Ryan from Randwick City Council.

3 The applicant is seeking the removal of the tree as it contends that dead fronds may fall from the palm and cause injury to persons. The applicant also contends that the tree has damaged and displaced a section of brick retaining wall to the point where it has become dangerous and may collapse. The application also expresses a concern about the potential failure of the entire tree.

4 The tree is a mature Phoenix canariensis (Canary Island Date Palm) growing approximately 800 mm from the rear fence of the respondent’s property. That fence forms part of the northern side boundary of the applicant’s property. The tree is healthy and holds a small percentage of dead fronds.

5 The fronds overhang the side driveway and main pedestrian access to the units. The live fronds are in close proximity to the building but have not caused, and are not causing, damage to the building.

6 The northern boundary of the applicant’s property to the west of the front of the building is bounded by a brick retaining wall ranging from 6 to approximately 12 courses high. On top of this wall is a timber paling fence supported by metal posts, the base of many of which are quite rusted.

7 The timber fence is in a dilapidated condition for its length and there is no dispute with respect to the need for its replacement due to its age and condition.

8 However, in order to replace the timber fence, the eastern three sections of the retaining wall will need to…

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 Wazrin Pty Ltd v Pearson

Details

AGLC: Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420
Case: [2009] NSWLEC 1420
Decision Date: 11 December 2009

CaseChat Overview and Summary

Wazrin Pty Ltd, the owner of a residential flat building at 2 Ethel Street Randwick, applied to the Land and Environment Court of New South Wales for the removal of a palm tree growing at the rear of 56 Howard Street Randwick, owned by Dr Stuart Pearson. The applicant sought the removal of the tree due to concerns that dead fronds could fall and cause injury to persons, and that the tree had damaged and displaced a section of the brick retaining wall, making it dangerous and potentially likely to collapse. The tree in question is a mature Phoenix canariensis, growing approximately 800 mm from the rear fence of the respondent's property, and its fronds overhang the side driveway and main pedestrian access to the applicant's units. The applicant argued that the tree had caused damage to a section of the retaining wall and that the wall's displacement posed a risk to persons.

The court had to decide whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property or was a risk of injury to persons. The court considered the relevant provisions of the Trees (Disputes Between Neighbours) Act 2006, which require the court to be satisfied that the tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property or is a risk of injury to persons. The court also had to consider the factors outlined in s 12 of the Act, including the tree's location, its local social and historical value, its contribution to the local ecosystem and biodiversity, its scenic value, and its contribution to public amenity. Furthermore, the court had to consider the possibility that the retaining wall may be on the respondent's property, and whether the court had jurisdiction to make orders regarding the wall.

The court found that there was no evidence to suggest that the entire tree would fail, which would be an extremely unlikely event given the species. However, there were several dead fronds that could fall from the tree in the near future, and the base of the fronds of this species has sharp spines. Given that the palm overhangs the main pedestrian entrance to the applicant's building, injury could arise if a frond was to fall. As such, the court concluded that one of the tests in s 10(2) was satisfied, and the jurisdiction was enlivened. The court dismissed the application to remove the tree but ordered the respondent to engage and pay for an arborist to remove the dead fronds from the Phoenix canariensis in accordance with AS4373:2007 Pruning of Amenity Trees. The court also directed the respondent to provide a surveyed plan of his rear property boundary and re-listed the matter for a final hearing, subject to the survey plan, to consider further orders with respect to the brick retaining wall.

Orders