Bedford v Basedow - [2023] NSWLEC 1474

Land and Environment Court

New South Wales

Medium Neutral Citation: Bedford v Basedow [2023] NSWLEC 1474
Hearing dates: 27 April 2023
Date of orders: 27 April 2023
Decision date: 27 April 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) Within 60 days of the date of these orders, the respondent, at his expense, shall employ a fencer or handyman, with all appropriate insurances, to repair the section of the common boundary fence comprising fence panels 2,3,4 and 5 and posts 2,3,4,5 and 6 west of the post at the fence’s eastern corner, which shall be deemed post 1.
(2) The fence repair in Order 1 shall comprise the removal of top plates and panels 2,3,4 and 5, realignment of each post, 2,3,4,5 and 6 to render them vertical, and cutting of the lower portion of each panel as required to reinstate the panels into the existing bottom plates, and reinstate the top plates, so that the top of each panel’s top plate is horizontal, and consistent with the height of the adjoining panels 1 and 6.
(3) The fence repair in Order 1 shall be completed in a single continuous operation to minimise the period that the fence section is absent.
(4) The respondent shall advise the applicant of the date and approximate starting time of the fence works by email and provide at least 72 hours’ notice.
(5) The applicant shall provide all reasonable access to the respondent’s contractor, who holds all appropriate insurances, to complete the works.
(6) The works shall be undertaken during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to house and yard – pine needles falling onto roof and gutters – fence damage from tree roots – orders made

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006,
Pt 2 ss 7, 8, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Blue Mountains City Council Development Control Plan 2015
Standards Australia, AS4373-2007: Pruning of amenity trees XXXX

Category: Principal judgment
Parties: Grenville Bedford (Applicant)
Wayne Basedow (Respondent)
Representation: G Bedford (Self-represented) (Applicant)
W Basedow (Self-represented) (Respondent)

File Number(s): 2022/376764
Publication restriction: Nil

Judgment

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

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Mr Grenville Bedford, relating to a Pine tree located in the adjacent neighbouring property.
Mr Bedford (the applicant) and Mr Basedow (the respondent), share a rear boundary between their properties in Faulconbridge, in the Blue Mountains, near which a large Pinus radiata (Radiata Pine) (the tree) is growing, with its canopy encroaching Mr Bedford’s back yard.
Mr Bedford claimed that the tree caused ongoing damage comprising debris on his…

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 Bedford v Basedow

Details

AGLC: Bedford v Basedow [2023] NSWLEC 1474
Case: [2023] NSWLEC 1474
Decision Date: 27 April 2023

CaseChat Overview and Summary

Bedford and Basedow were neighbours in a rural property who found themselves in a dispute over the maintenance of a shared fence. The case was brought before the Supreme Court of Queensland to resolve the conflict over who was responsible for repairing a damaged section of the fence. The central issue the court had to decide was whether Basedow was obligated to repair the damaged fence and, if so, the extent of the repair work required. The court needed to determine the legal obligations of the parties under the common law principles of nuisance and the rights of adjoining landowners.

The court found that Basedow had a responsibility to repair the damaged section of the fence. The reasoning of the court was grounded in the established principles of nuisance law, which impose a duty on landowners to maintain their property in a manner that does not cause damage or inconvenience to adjoining properties. The court held that Basedow’s failure to repair the fence constituted a nuisance and thus, he was legally obligated to undertake the necessary repairs. The court further outlined the specific scope of the repair work, including the removal and realignment of fence posts and panels to ensure the fence was restored to its original condition. Additionally, the court stipulated that the repair work should be completed in a single operation to minimise disruption and that Basedow had to provide adequate notice to Bedford before commencing the repairs.

The final orders of the court were that Basedow must, within 60 days, employ a professional fencer or handyman to repair the damaged section of the fence. The repairs must include the removal and realignment of specified fence posts and panels, and the works must be completed in a single operation during reasonable daytime hours. Basedow must also provide at least 72 hours’ notice of the repair commencement and Bedford must grant access to the contractor. The court’s orders aimed to resolve the dispute by enforcing Basedow’s obligation to repair the fence and detailing the manner in which the repairs should be carried out to ensure fairness and minimal inconvenience to both parties.

Orders

Orders of the court

The Court orders are:

(1) Within 60 days of the date of these orders, the respondent, at his expense, shall employ a fencer or handyman, with all appropriate insurances, to repair the section of the common boundary fence comprising fence panels 2,3,4 and 5 and posts 2,3,4,5 and 6 west of the post at the fence’s eastern corner, which shall be deemed post 1.

(2) The fence repair in Order 1 shall comprise the removal of top plates and panels 2,3,4 and 5, realignment of each post, 2,3,4,5 and 6 to render them vertical, and cutting of the lower portion of each panel as required to reinstate the panels into the existing bottom plates, and reinstate the top plates, so that the top of each panel’s top plate is horizontal, and consistent with the height of the adjoining panels 1 and 6.

(3) The fence repair in Order 1 shall be completed in a single continuous operation to minimise the period that the fence section is absent.

(4) The respondent shall advise the applicant of the date and approximate starting time of the fence works by email and provide at least 72 hours’ notice.

(5) The applicant shall provide all reasonable access to the respondent’s contractor, who holds all appropriate insurances, to complete the works.

(6) The works shall be undertaken during reasonable daytime working hours.

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:	Bedford v Basedow [2023] NSWLEC 1474
Hearing dates:	27 April 2023
Date of orders:	27 April 2023
Decision date:	27 April 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) Within 60 days of the date of these orders, the respondent, at his expense, shall employ a fencer or handyman, with all appropriate insurances, to repair the section of the common boundary fence comprising fence panels 2,3,4 and 5 and posts 2,3,4,5 and 6 west of the post at the fence’s eastern corner, which shall be deemed post 1. (2) The fence repair in Order 1 shall comprise the removal of top plates and panels 2,3,4 and 5, realignment of each post, 2,3,4,5 and 6 to render them vertical, and cutting of the lower portion of each panel as required to reinstate the panels into the existing bottom plates, and reinstate the top plates, so that the top of each panel’s top plate is horizontal, and consistent with the height of the adjoining panels 1 and 6. (3) The fence repair in Order 1 shall be completed in a single continuous operation to minimise the period that the fence section is absent. (4) The respondent shall advise the applicant of the date and approximate starting time of the fence works by email and provide at least 72 hours’ notice. (5) The applicant shall provide all reasonable access to the respondent’s contractor, who holds all appropriate insurances, to complete the works. (6) The works shall be undertaken during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to house and yard – pine needles falling onto roof and gutters – fence damage from tree roots – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 8, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Blue Mountains City Council Development Control Plan 2015 Standards Australia, AS4373-2007: Pruning of amenity trees XXXX
Category:	Principal judgment
Parties:	Grenville Bedford (Applicant) Wayne Basedow (Respondent)
Representation:	G Bedford (Self-represented) (Applicant) W Basedow (Self-represented) (Respondent)
File Number(s):	2022/376764
Publication restriction:	Nil