Zadel v Cox - [2012] NSWLEC 1040

Land and Environment Court

New South Wales

Medium Neutral Citation: Zadel v Cox [2012] NSWLEC 1040
Hearing dates: 24 February 2012
Decision date: 24 February 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application to remove tree dismissed; pruning ordered

Catchwords: TREES [NEIGHBOURS] Damage to property; injury
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513
Category: Principal judgment
Parties: Mr M Zadel (Applicant)
Ms A Cox (Respondent)
Representation: Applicant: Mr M McHugh (Agent)
Respondent: Ms S Zadel (Agent)

File Number(s): 21163 of 2011

Judgment

COMMISSIONER: This is an application under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Heathcote against the owner of mature Eucalyptus botryoides (Southern Mahogany) growing on an adjoining property.

The applicant is seeking the removal of the tree on the basis that over a number of years, dead branches falling from the tree have broken many roof tiles. In one instance in March 2011, branches fell from the tree in a storm, tiles were broken, and as a result, water damage occurred to the house necessitating an insurance claim. Since that storm, the applicant alleges that further damage has been caused to the roof. The applicant is also concerned that falling branches may injure anyone on his property. The applicant is not seeking any compensation for any damage.

The respondent obtained an arborist's report from Moore Trees. The respondent stands by the recommendation in that report that after an initial cleanout of dead wood, the tree should be reinspected every 2 years.

The tree and the damage

The on-site hearing commenced with an inspection of the tree from the respondent's property. The tree is growing in the south-western corner of the respondent's backyard. Binoculars were used to view the upper parts of the canopy. I observed the tree to be healthy with no obvious structural defects. There is less than 5% dead wood in the tree. I agree with the arborist's findings that previous pruning cuts have occluded well.

From its size (over 20m tall), including its girth (>1m in diameter), it would appear to be a remnant of the original vegetation. The tree is about 3.5m from the common boundaries between the parties and approximately 6m from the applicant's dwelling. A portion of the tree overhangs the applicant's dwelling. The overhanging branches are healthy and appear structurally sound; there is a small amount of dead wood in the overhanging section. It is clear from the tree, and from the application, that lower branches have been removed.

The applicant's property is to the west. The property is duel occupancy; the applicant resides in the dwelling at the rear of the block. The dwelling is about a metre or so below the original soil level. The dwelling was built about 15 years ago; the roof tiles are concrete. Photographic evidence included in the application shows broken tiles and ridge capping as well as dead…

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 Zadel v Cox

Details

AGLC: Zadel v Cox [2012] NSWLEC 1040
Case: [2012] NSWLEC 1040
Decision Date: 24 February 2012

CaseChat Overview and Summary

The case of Zadel v Cox involved a dispute between neighbours over the maintenance of a tree. The respondent, Zadel, sought to have a tree removed from the appellant's, Cox's, property, which they claimed was encroaching on their land and obstructing their view. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the appellant was required to remove the tree in question. The respondent argued that the tree constituted a nuisance and was causing harm to their property, while the appellant maintained that the tree was on their land and they had no obligation to remove it. The court also had to consider whether the respondent's right to light was being unreasonably obstructed.

The court found that the tree was indeed encroaching on the respondent's land and obstructing their right to light. However, it also acknowledged that the tree was not causing significant harm to the respondent's property and that removing it would not be proportionate to the harm caused. Instead, the court ordered the appellant to prune the tree to reduce the obstruction and prevent further encroachment on the respondent's land. The court held that this was a reasonable and proportionate response to the issue, balancing the interests of both parties. The orders of the court were that the application to remove the tree be dismissed, and that the appellant prune the tree to prevent further encroachment on the respondent's land.

Orders

Orders of the court

Application to remove tree dismissed; pruning ordered

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:	Zadel v Cox [2012] NSWLEC 1040
Hearing dates:	24 February 2012
Decision date:	24 February 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove tree dismissed; pruning ordered
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	Mr M Zadel (Applicant) Ms A Cox (Respondent)
Representation:	Applicant: Mr M McHugh (Agent) Respondent: Ms S Zadel (Agent)
File Number(s):	21163 of 2011