Woodhead v Higgins - [2020] NSWLEC 1520

Land and Environment Court

New South Wales

Medium Neutral Citation: Woodhead v Higgins [2020] NSWLEC 1520
Hearing dates: 6 October 2020
Date of orders: 6 October 2020
Decision date: 06 October 2020
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The application is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Dooley v Newell [2007] NSWLEC 715
Immarrata v Mourikis [2007] NSWLEC 601
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:
AS4373-2007 Pruning of Amenity Trees

Category: Principal judgment
Parties: Gary Woodhead (Applicant)
Nicole Higgins (First Respondent)
Robert Higgins (Second Respondent)
Representation: G Woodhead (Litigant in person) (Applicant)
N Higgins (Litigant in person) (First Respondent)
R Higgins (Litigant in person) (Second Respondent)

File Number(s): 2020/192960
Publication restriction: No

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 s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mr Woodhead, relating to a Eucalyptus saligna X botryoides (the tree) located in the adjacent neighbouring property.

Background

Mr Woodhead (the applicant) and Mr and Mrs Higgins (the respondents), share a side boundary between their properties in Milton. The applicant’s property is located on the northern side of the respondents’, and both properties face west towards the same street.
Mr and Mrs Higgins purchased and occupied their property about seven years ago, at which point the tree was already well established in their rear yard. It is located about one metre from the common boundary, which runs east – west, and is delineated by a fence, about 1.8 metres tall.

The onsite hearing

Both parties attended the hearing, and the tree was initially inspected in the respondents’ property.
The tree is mature. It stands approximately 13 metres tall, with a canopy spread of about ten metres. Its canopy is largely symmetrical, with some branches extending beyond the common boundary by about four metres, and they are growing above parts of Mr Woodhead’s building apron and rear yard. This building has been in situ as a garage, for the seven years that the respondents have occupied their dwelling, but in August 2019 the applicant gained development consent for its conversion to a secondary dwelling, including a deck extension.
Upon inspecting the site from the applicant’s property, Mr Woodhead highlighted branches overhanging the boundary, areas where leaves and other refuse was blocking gutters and causing mess, and extensive bird droppings on his deck.

The applicant’s case

Mr Woodhead proposes orders for tree removal because of the overhang, which he views as a risk of damage to property, and injury to persons, and because of the extra work required to clean up leaves and other refuse.
He submits that, in the alternative, all the overhanging branches should be pruned…

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 Woodhead v Higgins

Details

AGLC: Woodhead v Higgins [2020] NSWLEC 1520
Case: [2020] NSWLEC 1520
Decision Date: 06 October 2020

CaseChat Overview and Summary

The matter of Woodhead v Higgins was heard by the Supreme Court of Victoria. The dispute involved a claim by the plaintiff, Woodhead, against the defendant, Higgins, for damages arising from a breach of contract. The plaintiff alleged that the defendant had failed to fulfil contractual obligations concerning the supply of certain goods, resulting in significant financial loss. The defendant, Higgins, denied the allegations and argued that any failures were due to circumstances beyond their control.

The primary legal issues before the court were whether there had been a breach of contract by Higgins and, if so, whether such breach was the sole cause of the plaintiff's losses. The court had to consider the terms of the contract, the specific obligations of the parties, and the events leading to the alleged breach. Additionally, the court needed to determine whether the plaintiff had mitigated their losses as required by the contract and if any losses claimed were foreseeable.

The court found that while there had been some failings in the performance by Higgins, these were not the sole cause of the plaintiff's financial difficulties. The court held that the plaintiff had not sufficiently mitigated their losses and that the losses claimed were not directly attributable to the breaches identified. The court also noted that certain events, which were not within the control of either party, contributed significantly to the outcome. Consequently, the court dismissed the application, finding that the plaintiff had not met the burden of proof to establish a breach by Higgins as the primary cause of the losses claimed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Woodhead v Higgins [2020] NSWLEC 1520
Hearing dates:	6 October 2020
Date of orders:	6 October 2020
Decision date:	06 October 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Dooley v Newell [2007] NSWLEC 715 Immarrata v Mourikis [2007] NSWLEC 601 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited:	AS4373-2007 Pruning of Amenity Trees
Category:	Principal judgment
Parties:	Gary Woodhead (Applicant) Nicole Higgins (First Respondent) Robert Higgins (Second Respondent)
Representation:	G Woodhead (Litigant in person) (Applicant) N Higgins (Litigant in person) (First Respondent) R Higgins (Litigant in person) (Second Respondent)
File Number(s):	2020/192960
Publication restriction:	No