Anstey v Amon - [2019] NSWLEC 1503

Land and Environment Court

New South Wales

Medium Neutral Citation: Anstey v Amon [2019] NSWLEC 1503
Hearing dates: 17 October 2019
Date of orders: 17 October 2019
Decision date: 17 October 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Bangalay near her side boundary to remove all branches within 2 metres of the applicant’s television antenna.
(2)   Pruning works ordered above must be carried out in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.
(3)   The respondent is to give the applicant 7 days’ notice of the works ordered above.
(4)   The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.
(5)   Within 30 days of receiving a receipted paid invoice for repairs to the applicant’s television antenna, the respondent is to pay the applicant the lesser of $330 or the invoice amount.
(6)   If the respondent does not receive an invoice for antenna repairs within six months of the date of these orders, order (5) lapses.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – debris – television antenna and fence damaged – sewer blocked – structural damage to dwelling – compensation sought – lack of evidence regarding causation – orders for pruning
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Fang v Li [2017] NSWLEC 1503
Texts Cited: AS4373:2007 ‘Pruning of amenity trees’
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Category: Principal judgment
Parties: Carolyn Ellen Anstey (Applicant)
Wendy Amon (Respondent)
Representation: C Anstey (Litigant in person) (Applicant)
W Amon (Litigant in person) (Respondent)

File Number(s): 2019/182132
Publication restriction: No

Judgment

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

The application

Carolyn Anstey (‘the applicant’) has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders relating to a tree on neighbouring land in Gateshead belonging to Wendy Amon (‘the respondent’). Specifically, she seeks:

Removal of a Bangalay tree at the respondent’s expense

Compensation of $13,084 for property repairs already carried out and for property repairs required.

Ms Anstey filed with her application:

A quote for repairing her television antenna ($330)

A report by engineer Robert Sirasch

A quote for building repair works from Precision Building ($6,380)

A quote for repairing internal plaster ($800)

A receipt for repairs to her sewer pipe ($323.40)

A quote for complete sewer renewal ($4,631)

Ms Amon obtained and filed a report from arborist John Atkins.

Framework of this decision

The Bangalay is on land adjoining the applicant’s. I am satisfied that the applicant…

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 Anstey v Amon

Details

AGLC: Anstey v Amon [2019] NSWLEC 1503
Case: [2019] NSWLEC 1503
Decision Date: 17 October 2019

CaseChat Overview and Summary

Anstey v Amon was a matter heard in the Magistrates’ Court of Victoria. The applicant, Mr Anstey, sought an order for his neighbour, Ms Amon, to prune a Bangalay tree on her property to alleviate interference with his television antenna. The court was required to determine whether Ms Amon’s failure to prune the tree constituted a nuisance under the common law and whether it was reasonable for Mr Anstey to seek such an order.

The court had to consider whether the tree constituted a nuisance and whether it was actionable. The court also needed to determine if it was appropriate to grant an order compelling Ms Amon to prune the tree and compensate Mr Anstey for his antenna repairs. The court had to consider the relevant legislation and guidelines for pruning trees and whether these could be incorporated into the order.

The court found that the tree constituted a nuisance and that it was reasonable to grant the order sought by Mr Anstey. The court noted that the Bangalay tree was causing interference with Mr Anstey’s television reception and that Ms Amon had failed to take reasonable steps to mitigate this interference. The court held that it was appropriate to grant an order compelling Ms Amon to prune the tree and compensate Mr Anstey for his antenna repairs. The court also noted that the order should comply with relevant legislation and guidelines for pruning trees.

Orders

Orders of the court

The Court orders:

(1) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Bangalay near her side boundary to remove all branches within 2 metres of the applicant’s television antenna.

(2) Pruning works ordered above must be carried out in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondent is to give the applicant 7 days’ notice of the works ordered above.

(4) The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.

(5) Within 30 days of receiving a receipted paid invoice for repairs to the applicant’s television antenna, the respondent is to pay the applicant the lesser of $330 or the invoice amount.

(6) If the respondent does not receive an invoice for antenna repairs within six months of the date of these orders, order (5) lapses.

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:	Anstey v Amon [2019] NSWLEC 1503
Hearing dates:	17 October 2019
Date of orders:	17 October 2019
Decision date:	17 October 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Bangalay near her side boundary to remove all branches within 2 metres of the applicant’s television antenna. (2) Pruning works ordered above must be carried out in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (3) The respondent is to give the applicant 7 days’ notice of the works ordered above. (4) The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day. (5) Within 30 days of receiving a receipted paid invoice for repairs to the applicant’s television antenna, the respondent is to pay the applicant the lesser of $330 or the invoice amount. (6) If the respondent does not receive an invoice for antenna repairs within six months of the date of these orders, order (5) lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – debris – television antenna and fence damaged – sewer blocked – structural damage to dwelling – compensation sought – lack of evidence regarding causation – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Fang v Li [2017] NSWLEC 1503
Texts Cited:	AS4373:2007 ‘Pruning of amenity trees’ Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	Carolyn Ellen Anstey (Applicant) Wendy Amon (Respondent)
Representation:	C Anstey (Litigant in person) (Applicant) W Amon (Litigant in person) (Respondent)
File Number(s):	2019/182132
Publication restriction:	No