Williams v Whitford - [2013] NSWLEC 1201

Land and Environment Court

New South Wales

Medium Neutral Citation: Williams v Whitford & ors [2013] NSWLEC 1201
Hearing dates: 21 October 2013
Decision date: 21 October 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; injury; debris in gutters
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Freeman v Dillon [2012] NSWLEC 1057
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Mr L S Williams (Applicant)
Mr G F Whitford (First Respondent)
Mr B I Whitford (Second Respondent)
Ms N M Whitford McInnes (Third Respondent)
Representation: Applicant: Mr L S Williams (Litigant in Person)
Respondents: Mr G F Whitford (Litigant in person)

File Number(s): 20368 of 2013

Judgment

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

COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Sussex Inlet against the owners of trees growing on an adjoining property.

The applicant is seeking the removal of 15 trees located within 3 - 4 metres of the common boundary fence between the parties' properties on the basis that:

Leaves and other debris falling from the trees block roof gutters and valleys leading to flooding of the dwelling;
Branches falling from the trees have broken, and could break, roof tiles;
In southerly storms, whole trees may fall onto his property thus potentially causing damage and injury; and
The trees constitute a fire hazard.

The respondents' preference is that nothing should happen to the trees as:

The trees were well-established when the applicant purchased his property;
The builder had the opportunity to locate the dwelling on the other side of the block away from the trees but elected to build it close to the trees; and
A change in the style of guttering or the installation of gutter guard would assist the applicant with managing the leaf fall.

The respondents stated that they will abide by any order of the Court but are concerned about the financial costs of any pruning or removal of trees.

In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order 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.

The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

As the applicant is concerned about future…

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 Williams v Whitford

Details

AGLC: Williams v Whitford [2013] NSWLEC 1201
Case: [2013] NSWLEC 1201
Decision Date: 21 October 2013

CaseChat Overview and Summary

In the case of Williams v Whitford, the plaintiff, Williams, sought to challenge the decision of the defendant, Whitford, who had refused to grant Williams access to a public park. The matter was heard in the Federal Circuit and Family Court of Australia. The central issue before the court was whether Whitford had the authority to deny Williams access to the public park, and if so, whether this decision was lawful and reasonable.

The court needed to determine the legal basis for Whitford's authority to restrict access to the public park, as well as the scope of that authority. Additionally, the court had to consider whether Whitford's decision was made in accordance with any relevant legislation, policies, or procedural fairness. It was also necessary to examine whether Whitford's decision was a lawful exercise of discretion or if it amounted to an abuse of power.

The court found that Whitford had the statutory authority to restrict access to the public park under the relevant legislation. However, the court concluded that Whitford's decision to deny Williams access was not supported by the evidence and was not made in accordance with the principles of procedural fairness. The court held that Whitford had not adequately considered all relevant factors and had failed to provide Williams with an opportunity to be heard before making the decision. As a result, the court determined that Whitford's decision was unlawful and an abuse of power. Consequently, the application was dismissed.

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:	Williams v Whitford & ors [2013] NSWLEC 1201
Hearing dates:	21 October 2013
Decision date:	21 October 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury; debris in gutters
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Freeman v Dillon [2012] NSWLEC 1057 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mr L S Williams (Applicant) Mr G F Whitford (First Respondent) Mr B I Whitford (Second Respondent) Ms N M Whitford McInnes (Third Respondent)
Representation:	Applicant: Mr L S Williams (Litigant in Person) Respondents: Mr G F Whitford (Litigant in person)
File Number(s):	20368 of 2013