Young v Cole - [2008] NSWLEC 1342

Land and Environment Court

of New South Wales

CITATION: Young v Cole [2008] NSWLEC 1342

PARTIES:
APPLICANT
Janice Young
RESPONDENT
Greg Cole

FILE NUMBER(S): 20520 of 2008

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Tree be heavily pruned or removed, damage to property, risk of injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 12/08/2008

EX TEMPORE JUDGMENT DATE: 12 August 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms J Young, litigant in person
RESPONDENT
Mr G Cole, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

12 August 2008

20520 of 2008

Janice Young v Greg Cole

JUDGMENT

1 ACTING COMMISSIONER: A peppercorn tree grows in the south western corner of the backyard of 35 Paul Street Picnic Point, owned by Mr Cole. The tree overhangs 37 Ramsay Street Picnic Point, the adjoining property to the south. Mr Cole’s property has a single dwelling and large area of yard, as did 37 Ramsay Street prior to its development with four villas in 2002. Branches of the peppercorn tree extend a few metres over both 2/37 Ramsay Street owned by Mrs and Mrs Farrugia and 3/37 Ramsay Street owned by Mrs Young.

2 The applicants are concerned that:

3 The applicants seek orders that the tree be heavily pruned or removed.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are:

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

The tree

6 I observed that the tree is a peppercorn tree (Schinus areira) about 12 m in height and spread. It appears to be in good health without included bark that may indicate weak…

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 Young v Cole

Details

AGLC: Young v Cole [2008] NSWLEC 1342
Case: [2008] NSWLEC 1342
Decision Date: 12 August 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant, Janice Young, sought orders for the heavy pruning or removal of a peppercorn tree located on the property of Greg Cole, her neighbour. The tree, situated in the south-western corner of Cole's property at 35 Paul Street, Picnic Point, overhangs Ramsay Street, including Young's property at 3/37 Ramsay Street. Young argued that the tree's branches blocked gutters and drains, stained her facias and paving, posed a risk of damage to sewer pipes and villa buildings, and could cause injury due to falling branches. Cole, the respondent, opposed the application, asserting the tree's health and its contributions to the local ecosystem and scenic values.

The court had to determine if the tree met any of the statutory tests outlined in section 10(2) of the Trees (Disputes Between Neighbours) Act 2006, which include whether the tree has caused or is likely to cause damage to property or injury to any person. If such tests were met, the court would then consider whether the damage or risk was serious enough to warrant intervention and what orders should be made. The court observed the tree and noted it appeared healthy with no significant deadwood or structural weaknesses. The court accepted evidence that the tree had caused water damage by blocking gutters, but found no evidence that it was likely to cause future damage to property or injury to any person.

After considering the evidence and statutory considerations under section 12 of the Act, including the tree's contribution to the local ecosystem and scenic values, the court found that while the tree had caused some damage, the applicants' properties had been developed too close to the tree, and they had not adequately considered the tree's presence in their property design and maintenance. The court found that the applicants could reasonably be expected to maintain their properties in the presence of the tree, in line with the principle established in Barker v Kyriakides. The court concluded that the tree was not likely to cause injury and, after weighing all considerations, found that no interference with the tree should be ordered.

Accordingly, the court dismissed Young's application for heavy pruning or removal of the tree. The orders of the Court were that the applications were refused.

Orders