Wilson v Farah [2017] NSWLEC 91

Wilson v Farah [2017] NSWLEC 91

The Commissioner erred in law by construing "damage to property" too narrowly, because excessive algal growth and gross discoloration of pool water could constitute damage to a swimming pool. However, that error did not vitiate the decision because the Commissioner also made a factual finding, not shown to involve legal error, that any damage to the pool was not caused by the tree but by inadequate maintenance, and alternatively would not have exercised the discretion to order removal of the tree. The Commissioner did not deny procedural fairness because Ms Wilson was invited to make submissions and give evidence, her written submissions and affidavit were admitted, the substance of the...

Jurisdiction
Australia
Judgment Date
21 July 2017
Procedural Posture
Class 2 Appeal Under S 56 a of the Land and Environment Court Act 1979 / Appeal Against Commissioner's Decision on Questions of Law
Outcome
Appeal dismissed.
Legal Topics
['damage to Property' 'tree Removal' 'causation' 'procedural Fairness' 'prejudgment' 'fair Hearing' 'appeal on Questions of Law']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Procedure' 'administrative Law'] ['damage to Property' 'tree Removal' 'causation' 'procedural Fairness' 'prejudgment' 'fair Hearing' 'appeal on Questions of Law']

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Procedural Posture

Class 2 Appeal Under S 56 a of the Land and Environment Court Act 1979 / Appeal Against Commissioner's Decision on Questions of Law

Legal Issues

  1. 1 ['Whether the Commissioner erred in law by misconstruing the statutory phrase "damage to property" in ss 7, 9 and 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether any error in construing "damage to property" vitiated the Commissioner\'s decision.' 'Whether the Commissioner denied Ms Wilson procedural fairness by prejudging the application.' 'Whether the Commissioner denied Ms Wilson a fair hearing by refusing to admit or consider documents.']

Ratio Decidendi

The Commissioner erred in law by construing "damage to property" too narrowly, because excessive algal growth and gross discoloration of pool water could constitute damage to a swimming pool. However, that error did not vitiate the decision because the Commissioner also made a factual finding, not shown to involve legal error, that any damage to the pool was not caused by the tree but by inadequate maintenance, and alternatively would not have exercised the discretion to order removal of the tree. The Commissioner did not deny procedural fairness because Ms Wilson was invited to make submissions and give evidence, her written submissions and affidavit were admitted, the substance of the...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'Each party is to pay their own costs of the appeal.']