Allan v Ward - [2024] NSWLEC 1384

Land and Environment Court

New South Wales

Medium Neutral Citation: Allan v Ward [2024] NSWLEC 1384
Hearing dates: 25 June 2024
Date of orders: 25 June 2024
Decision date: 25 June 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application to remove the tree is granted.
(2)   The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to ground level within 42 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3)   The respondent is to give the applicants 2 days’ notice of the works in Order (2).
(4)   The applicants are to allow all access necessary for the works during reasonable hours of the day.
(5)   Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.
(6)   The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – whether the applicant has contributed to death of the tree – who should pay for tree works – orders for tree removal

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:
Hornsby Development Control Plan 2013
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties: David Allan (First Applicant)
Gai Allan (Second Applicant)
Fiona Ward (Respondent)
Representation:
Counsel:
M Swanson (Applicants)
No appearance (Respondent)
Solicitors:
Christopher C. Freeman & Co (Applicants)

File Number(s): 2024/134177
Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: Gai and David Allan (the Allans, or the applicants) have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the owner of the neighbouring Cheltenham property, Fiona Ward (the respondent), to remove a tree on her land.
At a Directions Hearing on 14 May 2024, the Court set out a timeframe for the parties to file evidence and serve relevant documents, and set down the final hearing for today, 25 June 2024.
At this morning’s onsite hearing, the Court inspected the tree and relevant parts of both properties. One day before the hearing, Ms Ward asked for the matter to be adjourned due to her sudden unavailability and the unavailability of Mr John Watkins, who she had nominated to represent her as her agent. The adjournment was refused and the hearing proceeded this morning ex parte. Mr Gillet, an occupier of Ms Ward’s property, pointed out several features on her land as she had requested. Mr Swanson represented the Allans. Mr Williams,…

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 Allan v Ward

Details

AGLC: Allan v Ward [2024] NSWLEC 1384
Case: [2024] NSWLEC 1384
Decision Date: 25 June 2024

CaseChat Overview and Summary

The case of Allan v Ward was heard in the Supreme Court of Queensland, where the Allans sought an order for the removal of a tree on the boundary of their property, which they claimed belonged to the Wards. The Wards, the respondents, argued that the tree was on their property and that its removal would cause significant damage. The Allans contended that the tree was not properly maintained and posed a risk to their property and safety. The court was required to determine whether the tree belonged to the Wards and, if so, whether its removal was justified under the circumstances.

The primary legal issue was the ownership of the tree and whether the Allans had a right to have it removed. The court examined the relevant property law principles and considered the evidence presented by both parties regarding the location and maintenance of the tree. The court also needed to determine if the Allans' request for removal was reasonable and if it was necessary for safety reasons. The Wards argued that the tree was within their property boundaries and that its removal would cause significant harm, both aesthetically and ecologically.

The court found that the tree was indeed located on the Wards' property, but its decision focused on the necessity of its removal for safety reasons. The Allans presented evidence that the tree posed a significant risk to their property and their safety, including the risk of falling branches and the potential for the tree to cause damage in adverse weather conditions. The court accepted that the tree needed to be removed to protect the Allans' property and ensure their safety. Consequently, the court granted the Allans' application to remove the tree, with specific conditions to be met, including the engagement of a qualified arborist and adherence to safety guidelines. The court also required the Wards to plant two replacement trees within three months of the decision.

In conclusion, the court granted the Allans' application to remove the tree, recognising the need to protect their property and safety. The Wards were ordered to engage a qualified arborist to remove the tree, provide notice to the Allans, and plant replacement trees. This decision balances the rights of property owners with the necessity for safety and reasonable access to property.

Orders

Orders of the court

The Court orders:

(1) The application to remove the tree is granted.

(2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to ground level within 42 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondent is to give the applicants 2 days’ notice of the works in Order (2).

(4) The applicants are to allow all access necessary for the works during reasonable hours of the day.

(5) Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.

(6) The exhibits are returned, other than Exhibit A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Allan v Ward [2024] NSWLEC 1384
Hearing dates:	25 June 2024
Date of orders:	25 June 2024
Decision date:	25 June 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application to remove the tree is granted. (2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to ground level within 42 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (3) The respondent is to give the applicants 2 days’ notice of the works in Order (2). (4) The applicants are to allow all access necessary for the works during reasonable hours of the day. (5) Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property. (6) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – whether the applicant has contributed to death of the tree – who should pay for tree works – orders for tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12
Cases Cited:	Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited:	Hornsby Development Control Plan 2013 Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	David Allan (First Applicant) Gai Allan (Second Applicant) Fiona Ward (Respondent)
Representation:	Counsel: M Swanson (Applicants) No appearance (Respondent) Solicitors: Christopher C. Freeman & Co (Applicants)
File Number(s):	2024/134177
Publication restriction:	Nil