Wilson v Farah [2017] NSWLEC 91

Land and Environment Court New South Wales

Medium Neutral Citation: Wilson v Farah [2017] NSWLEC 91 Hearing dates: 29 May 2017 Date of orders: 21 July 2017 Decision date: 21 July 2017 Jurisdiction: Class 2 Before: Preston CJ Decision: The Court orders that: (1) The appeal is dismissed. (2) Each party is to pay their own costs of the appeal. Catchwords: APPEAL – appeal against commissioner's decision – application for the removal of a tree growing on the neighbouring property claimed to cause damage to swimming pool – appeal on questions of law – precondition to making order for tree removal – tree must cause damage to applicant's property – meaning of "damage to property" – commissioner erred by too narrowly construing "damage to property" – damage not limited to physical damage to fabric of pool and other components – damage could include excessive algal growth on inside of pool and gross discolouration of pool water – material impairment of usefulness of pool and fitness for purpose constitutes damage to property – error on question of law did not vitiate decision – no error in finding that any damage was not caused by the tree – whether applicant denied procedural fairness – whether commissioner prejudged the application – commissioner invited, applicant gave and commissioner considered submissions and evidence – commissioner did not prejudge the application – whether commissioner denied a fair hearing by refusing to admit various documents into evidence – documents were either later admitted as evidence, otherwise considered by commissioner or irrelevant – no denial of fair hearing – appeal dismissed – each party to pay their own costs of appeal Legislation Cited: Land and Environment Court Act 1979 s 56A Trees (Disputes Between Neighbours) Act 2006 ss 7, 9, 10(2) Cases Cited: A (A Juvenile) v R [1978] Crim LR 689 Barker v Kyriakides [2007] NSWLEC 292 Bayer Australia Ltd v Kemcon Pty Ltd (1991) 6 ANZ Ins Cas 61-026 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; [2005] NSWLEC 470 Griffiths v Morgan [1972] Tas SR (NC) 279 (N28) Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 Mainstream Aquaculture Pty Ltd v Calliden Insurance Limited [2011] VSC 286 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 Morphitis v Salmon [1990] Crim LR 48 R v Hayne (Court of Criminal Appeal (NSW), 18 September 1998, unrep) R v Previsic (2008) 185 A Crim R 383; [2008] VSCA 112 R v Whiteley (1991) 93 Cr App R 25 R v Zischke [1983] Qd R 240 Ranicar v Frigmobile Pty Ltd [1983] Tas R 113 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Roper v Knott [1898] 1 QB 868 Samuels v Stubbs (1972) 4 SASR 200 Smith and Hannaford v Zhang and Zhou [2011] NSWLEC 29 Switzerland Insurance Australia Ltd v Dundean Distributors Pty Ltd [1998] 4 VR 692 Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 Category: Principal judgment Parties: Marina Wilson (Appellant) Vivian Farah (First Respondent) Anthony Farah (Second Respondent) Kathy Farah (Third Respondent) Representation: Applicant in person Third Respondent in person File Number(s): 2017/58230 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Civil Citation: [2017] NSWLEC 1006 Date of Decision: 10 January 2017 Before: Fakes AC File Number(s): 285570/2016