Land and Environment Court of New South Wales CITATION : Gray v Ward [2010] NSWLEC 166 APPLICANTS: Bruce Gray and Julie-Anne Gray PARTIES : RESPONDENTS: Raymond Ward FILE NUMBER(S) : 20392 of 2010 CORAM: Biscoe J KEY ISSUES: TREES (NEIGHBOURS) :- appeal on question of law against a decision of a Commissioner under s 7 of the Trees (Disputes Between Neighbours) Act 2006 - Commissioner erred in law in holding that the applicants' contentions were limited to dead branches falling and that there was no evidence of live branches falling – matter remitted to a Commissioner for rehearing. Land and Environment Court Act 1979, s 56A LEGISLATION CITED: Trees (Disputes between Neighbours) Act 2006, s 7 Uniform Civil Procedure Rules 2005, 50.3 CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 DATES OF HEARING: 6 September 2010 EX TEMPORE JUDGMENT DATE : 6 September 2010 APPLICANT: Dr Bruce Gray (in person) SOLICITORS LEGAL REPRESENTATIVES: n/a RESPONDENT: no appearance SOLICITORS n/a JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 6 September 2010 20392 of 2010 BRUCE GRAY & ANOR v WARD EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an appeal under s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner of this Court: Gray v Ward [2010] NSWLEC 1056. As such, the appeal is limited to a question of law. 2 The appeal is uncontested and, indeed, derives support from the evidence before me of one of the respondents, Mr Ward: see [10] below. BACKGROUND 3 The application before the Commissioner was made pursuant to s 7 of the Trees (Disputes between Neighbours) Act 2006 by Dr and Mrs Gray of 34 Bilyard Avenue, Wahroonga against Mr and Mrs Ward in relation to three trees growing at the rear of Mr and Mrs Ward's adjoining property, 30-32 Billyard Avenue. 4 The applicants sought the removal of the three trees because they contended that branches falling from the trees had caused, and continue to cause, damage to their property and were a risk of injury to persons. 5 The Commissioner dismissed the application to remove the three trees but ordered the respondents to engage and pay for an arborist to remove all dead wood from the trees from the sections overhanging the applicants' property to a distance of 8 metres inside the respondents' property measured from the dividing fence between the two properties. Among other orders of the Commissioner was an order that such removal of dead wood be carried out every two years. THE APPEAL 6 An extension of time to commence the appeal is sought under the Uniform Civil Procedure Rules 2005 50.3. The appeal was a few days late in being commenced due to erroneous legal advice being received by Dr Gray as to the time for appealing. In the circumstances, I consider it appropriate to extend the time for commencing the appeal. 7 The grounds of appeal can be consolidated and grouped as follows: (a) the Commissioner erred by incorrectly holding that the applicants contended that only dead branches falling from the subject trees caused and could continue to cause damage and risk of injury; (b) the Commissioner erred by holding that "there has been no evidence that live branches have fallen from the trees" and failed to consider the written or oral evidence of Dr Gray, Mr and Mrs Ward and the applicants' arborist Mr Kyle Hill that live branches frequently fell from the subject trees; (c) the Commissioner failed to give adequate consideration or weight to the evidence of Mr Hill as to the health and status of the offending trees and the possible solutions to the problems posed by falling live and dead branches. DISCUSSION 8 In my opinion, the Commissioner erred in law in treating the applicants' contentions and the evidence as being confined to dead branches, as distinct from live branches. In that regard, the Commissioner said: (a) "the applicants are seeking the removal of the three trees as they contend that dead branches falling from the trees have caused and could continue to cause damage to their property and are a risk of injury to other persons": at [2]; (b) "the danger said to have been caused by the falling dead wood is the breaking of roof tiles" etc: at [3]; (c) "there has been no evidence that live branches have failed [sic] from the tree": at [25]. 9 In fact there was written evidence before the Commissioner that many live branches, as well as dead branches, had fallen and were likely to continue to fall from one or more of the trees, as follows: (a) Dr Gray said in an affidavit of 23 March 2010 at [6]: "During the period from May 2007 until 15 March 2008 I observed that many tree branches, both dead and alive, had fallen into Our Property from Next Door"; (b) a table in the report of Mr Hill of 23 March 2010 said in relation to Tree 3 that: "This tree as briefed by my client unfortunately drops branches (dead & live) with regular frequency". In the summary in the report, Mr Hill said: "The frequency of live branch failure incidents over time is likely to increase rather than decrease". It is unclear whether this last comment was confined to Tree 3. 10 As for the oral evidence before the Commissioner, there is no transcript but on the appeal before me affidavits were read of Dr Gray and Mr Ward which indicate that at the onsite hearing both Mr and Mrs Ward, in reply to questioning from the Commissioner, said that green branches frequently fell from the trees and that the live branches are often of a substantial size. In addition, Dr Gray's evidence before me was that at the onsite hearing before the Commissioner (a) he too gave evidence that live as well as dead branches frequently fell from the trees onto his property; (b) he gave evidence that on one occasion a live branch fell from one of the trees and landed to the east of an outbuilding located on his property; and (c) Mr Hill picked up a fallen branch from Tree 1 and spoke to the Commissioner with reference to that branch and Dr Gray took the branch, scraped the bark and demonstrated to the Commissioner and the others present that it was green and not dead. Dr Gray also said in evidence before me that he did not state before the Commissioner that only dead branches caused the damage to the tiles of the outbuildings. 11 The written evidence before the Commissioner is sufficient, even without resort to the oral evidence said to have been before the Commissioner, to establish that the Commissioner fell into error in holding that the applicants' contentions only concerned dead branches falling and that there was no evidence of live branches falling. They were errors of law because the Commissioner misdirected herself ie defined otherwise than in accordance with law the question of fact which she had to answer: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. As a matter of law, the Commissioner was required to take into account the applicants' contentions, and the evidence concerning, live branches falling. 12 The appeal should be upheld and the matter remitted to a Commissioner for rehearing. ORDERS 13 The orders of the Court are as follows: 1. Extend the time for commencing the appeal to the date of commencement of the appeal. 2. The appeal is allowed. 3. The matter is remitted to a Commissioner for rehearing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.