APPLICANT In person RESPONDENT Mr S Gates, solicitor SOLICITORS Straton Gates
JUDGMENT:
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
Brown C with Hoffman C and Fakes AC
31 August 2007
20367 of 2007 Miriam Yang v Terrance Wayne Scerri
JUDGMENT
1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Ms Miriam Yang of 3/3 Russell Street East Dennistone concerning a Sydney Blue Gum (Eucalyptus saligna) (the tree) located close to the common boundary with 5 Russell Street East Dennistone owned by Mr Terrance Wayne Scerri. Mr Scerri lives overseas and was represented by his solicitor Mr Simon Gates and representatives of the leasing agent First National Real Estate Epping.
2 The extemporaneous decision was given on site on 31 August 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.
3 Ms Yang’s application is to require the removal of the tree as:
the tree has caused damage to the units through falling branches. The Body Corporate records indicate damage to Unit 2 in 1996 from the tree.
on 24 March 2007 a very large tree trunk broke away from the tree without warning causing damage to the roof, tiling and guttering off Unit 3,
there are several major tree trunks extending over the roof of 3 Russell Street,
approval has been granted by the council for the removal of the tree,
an arborist report supports the removal of the tree, and
the tree shows signs of termite infestation.
4 Ms Yang maintains that there is a very high potential of risk of injury to people due to the location of this tree and the history of branches dropping into 3 Russell Street, as well as the site containing the tree.
5 Compensation of $446 is sought based on the cost of the tree application ($346) and the insurance excess for the damage caused on 24 March 2007 ($100).
6 Mr Gates opposes the removal of the tree because the tree is in good health. He would however accept orders that provides for:
pruning of overhanging branches,
removal of deadwood,
annual inspections with a copy of that the annual report to be provided to the Owners Corporation of 3 Russell Street and
compliance with any pruning and removal of deadwood within 60 days.
7 The respondent provided an arborist report (ecodesign dated 13 Aug 2007) that states that the tree is mature and considering the…
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.
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Details
AGLC
Yang v Scerri [2007] NSWLEC 592
Case
[2007] NSWLEC 592
Decision Date
CaseChat Overview and Summary
In the Land and Environment Court of New South Wales, the case of Yang v Scerri involved a dispute between neighbours regarding a Sydney Blue Gum tree. The applicant, Miriam Yang, sought the removal of the tree located near the common boundary of her property at 3/3 Russell Street East Dennistone and the respondent's property at 5 Russell Street East Dennistone, owned by Terrance Wayne Scerri. Ms Yang argued that the tree had caused damage to her property and posed a safety risk due to falling branches and termite infestation. The respondent, represented by Mr Simon Gates, opposed the removal of the tree, arguing that it was in good health and suggesting alternative measures such as pruning and annual inspections.
The key legal issues before the Court were whether the tree had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person, as per section 10(2)(a) and (b) of the Trees (Disputes Between Neighbours) Act 2006. The Court had to determine the interpretation of the term "near future" and the likelihood of damage or injury. The Court also had to consider the compensation claim made by Ms Yang.
The Court found that while the tree was in a mature state, there was no valid reason for its removal based on their observations. The Court noted that Ms Yang's concerns were acknowledged, but the site observations did not highlight any obvious weaknesses in the tree's structure. The Court established a principle that the near future ordinarily involves a time period extending from the date of determination of the application to 12 months. The Court also rejected Ms Yang's compensation claim, as it was limited to damage to property under section 9(2)(i) of the Act.
In conclusion, the Court upheld the application in part and ordered the respondent to undertake specific works related to the tree, including the removal of dead wood, aerial inspections for defective branches, and annual inspections for termite infestation. The Court required the owner of the tree to provide written reports to the Owners Corporation of 3 Russell Street and mandated that all ordered works be paid by the tree owners.