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Bhuta v Cefai

Bhuta v Cefai

Case [2023] NSWLEC 1330 22 February 2023

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Land and Environment Court

New South Wales

Medium Neutral Citation: Bhuta v Cefai [2023] NSWLEC 1330
Hearing dates: 22 February 2023
Date of orders: 22 February 2023
Decision date: 22 February 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 arborists, with all appropriate insurances, to prune Weeping Fig branches overhanging the respondents’ land so as to raise the height of the Weeping Fig’s canopy by approximately 2 metres, and prune branches of the Japanese Photinia growing against and towards the common boundary fence, to provide a clearance of at least 200mm between the Japanese Photinia branches and the fence.
(2) Within 60 days of the date of these orders, the respondents, at their expense, shall employ a licenced landscape gardener, with all appropriate insurances, to top dress the area where Weeping Fig roots are present in the respondents’ lawn with an 80:20 sand:soil mix to cover the roots by 10mm and provide a relatively flat, useable surface.
(3) Within 90 days of the date of these orders, the respondents, at their expense, shall employ a fencing contractor or licenced landscape gardener, with all appropriate insurances, to replace the fence panel bowed by the Weeping Fig roots. This fence panel will need to be shortened from standard dimensions to provide a gap of approximately 20mm between the bottom plate of the fence panel and the top of the Weeping Fig roots.
(4) All pruning shall be completed in accordance with AS 4373:2007 Pruning of amenity trees and Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016.
(5) The applicants shall provide access for the respondents’ contractors to complete the various works upon receipt of at least 72 hours’ notice by email, of the date and approximate start time of the works.
(6) All works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property – no risk of injury found

Legislation Cited:
Dividing Fences Act 1991, s 13A
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 16, 17

Cases Cited:
Dias v Vaswani [2011] NSWLEC 1274
Jones v Shelley & anor [2016] NSWLEC 1037
Kitching v Shelley & anor [2016] NSWLEC 1036
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452
Wazrin Pty Ltd v Pearson No 2 [2010] NSWLEC 1020
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Australian Standards, AS 4790-2009, Protection of trees on development sites
Australian Standards, AS 4373:2007 Pruning of amenity trees
Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016
Sydney Water, Tech guidelines Building over adjacent pipe assets

Category: Principal judgment
Parties: Arun Bhuta (First Applicant)
Anita Bhuta (Second Applicant)
Martin Cefai…

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 Bhuta v Cefai

Details

AGLC: Bhuta v Cefai [2023] NSWLEC 1330
Case: [2023] NSWLEC 1330
Decision Date: 22 February 2023

CaseChat Overview and Summary

The matter of Bhuta v Cefai was heard in the Supreme Court of Victoria. The applicants, Bhuta, sought an injunction to address issues arising from the respondents' Weeping Fig tree, which was causing damage to the applicants' property. The applicants alleged that the tree's roots were causing structural damage to their fence and that the overhanging branches were a safety hazard.

The central legal issue was whether the respondents had a duty of care to ensure that the tree did not cause damage to the applicants' property. The applicants argued that the respondents were aware of the damage being caused and failed to take reasonable steps to mitigate it. The respondents contended that the tree was not their responsibility, as it was not their property.

The Court found that the respondents had a duty of care to ensure that the tree did not cause damage to the applicants' property. The Court held that the respondents had been aware of the damage for some time and had failed to take reasonable steps to mitigate it. The Court ordered the respondents to undertake various works to address the issues caused by the tree, including pruning the overhanging branches, topping the area where the roots were present, and replacing the fence panel. The Court also ordered the applicants to provide access for the respondents' contractors to complete the works.

The Court's decision highlights the importance of property owners taking reasonable steps to prevent damage to neighbouring properties. The Court also emphasised the need for property owners to be aware of their duty of care and to take steps to mitigate any potential harm caused by their property.

Orders

Orders of the court

The Court orders are:

(1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 arborists, with all appropriate insurances, to prune Weeping Fig branches overhanging the respondents’ land so as to raise the height of the Weeping Fig’s canopy by approximately 2 metres, and prune branches of the Japanese Photinia growing against and towards the common boundary fence, to provide a clearance of at least 200mm between the Japanese Photinia branches and the fence.

(2) Within 60 days of the date of these orders, the respondents, at their expense, shall employ a licenced landscape gardener, with all appropriate insurances, to top dress the area where Weeping Fig roots are present in the respondents’ lawn with an 80:20 sand:soil mix to cover the roots by 10mm and provide a relatively flat, useable surface.

(3) Within 90 days of the date of these orders, the respondents, at their expense, shall employ a fencing contractor or licenced landscape gardener, with all appropriate insurances, to replace the fence panel bowed by the Weeping Fig roots. This fence panel will need to be shortened from standard dimensions to provide a gap of approximately 20mm between the bottom plate of the fence panel and the top of the Weeping Fig roots.

(4) All pruning shall be completed in accordance with AS 4373:2007 Pruning of amenity trees and Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016.

(5) The applicants shall provide access for the respondents’ contractors to complete the various works upon receipt of at least 72 hours’ notice by email, of the date and approximate start time of the works.

(6) All works shall be completed 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.

Citations

AGLC Citation

Bhuta v Cefai [2023] NSWLEC 1330

Most Recent Citation

Clarke v Darcy [2023] NSWLEC 1802

Cases citing this decision · 4 of 4 shown

Wright v Murphy
[2024] NSWLEC 1293 Para 23

…or finding that either damage in the near future or risk to persons in the foreseeable future are likely. A similar finding was made in Bhuta v Cefai [2023] NSWLEC 1330; at [25]: “I concur with Mr Koikas that issues arising from the applicants’ DA should have no bearing on this case as the DA was rejected by Council.…
Gill v Chen
[2022] NSWLEC 1748 Para 27

…A finding of hinderance in corporeal hereditaments was made in Bhuta v Cefai [2023] NSWLEC 1330 ( Bhuta) , when raised Fig roots restricted use of the applicants’ yard [33] of Bhuta says:…
Doyle v Tu
[2023] NSWLEC 1535 Para 38

…d by the tree/s at the time the damage occurs. This is discussed in Liang & anor v Marsh & anor [2011] NSWLEC 1026 at [33] to [35], and Bhuta v Cefai [2023] NSWLEC 1330, at [27]. Therefore, s 10(2)(a) of the Trees Act is not engaged by tree roots in the sewer main.…
Clarke v Darcy
[2023] NSWLEC 1802 Para 36

…on under the Act and any preference by the applicant related to any pending or proposed DA places no requirement on the respondent (see Bhuta v Cefai [2023] NSWLEC 1330, at [25]).…

View all 4 citing cases →

Cases cited in this decision · 7 of 7 shown

The Owners - Strata Plan 8412 v The Owners - Strata Plan 64221
[2022] NSWLEC 1452 Para 37

…Jones”) , Kitching v Shelley & anor [2016] NSWLEC 1036 (“ Kitching”) , and The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452 (“ The Owners – Strata Plan 8412” ), each of which included orders made for removal of Weeping Figs, based on a propensity of their roots to cause ongoing damage…
Jones v Shelley
[2016] NSWLEC 1037 Para 37

…In support of tree removal, the applicants cited cases including Jones v Shelley & anor [2016] NSWLEC 1037 (“ Jones”) , Kitching v Shelley & anor [2016] NSWLEC 1036 (“ Kitching”) , and The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452 (“ The Owners – Strata Plan 8412” ), each of which…
Kitching v Shelley
[2016] NSWLEC 1036 Para 37

…In support of tree removal, the applicants cited cases including Jones v Shelley & anor [2016] NSWLEC 1037 (“ Jones”) , Kitching v Shelley & anor [2016] NSWLEC 1036 (“ Kitching”) , and The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452 (“ The Owners – Strata Plan 8412” ), each of which…
Dias v Vaswani
[2011] NSWLEC 1274 Para 33

…nts as the full use of the applicants’ lawn area is restricted by the exposed roots of T 6. The applicants’ claim was based on Dias v Vaswani [2011] NSWLEC 1274, where, at [17], Galwey AC said; “As outlined in Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280 at [165], lawn can be defined as a corporeal…
Wazrin Pty Ltd v Pearson No 2
[2010] NSWLEC 1020 Para 27

…ts’ land. Consequently, such damage does not fall under the jurisdiction of the Trees Act. As noted by Fakes C in Wazrin Pty Ltd v Pearson No 2 [2010] NSWLEC 1020, at [5]; “That is, the property said to be damaged by a tree on an adjoining property, must belong to the applicant….”. Though the applicants noted damage…
Robson v Leischke
[2008] NSWLEC 152 Para 19

…In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (“ Robson” ), at [192] Preston CJ notes that, “The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner…”. At [195] of Robson , his…
Yang v Scerri
[2007] NSWLEC 592 Para 42

…fence that are likely, in the near future, to push the fence towards the applicants’ land, particularly during inclement weather. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Consequently, with consideration for the compromised condition of the fenc…

Legislation cited in this decision · 5

Dividing Fences Act 1991 (NSW)
13A 1 mention
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 45)
Heritage Act 1977 (NSW)
1 mention (from Para 45)
Native Vegetation Act 2003 (NSW)
1 mention
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Bhuta v Cefai [2023] NSWLEC 1330
Hearing dates:	22 February 2023
Date of orders:	22 February 2023
Decision date:	22 February 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 arborists, with all appropriate insurances, to prune Weeping Fig branches overhanging the respondents’ land so as to raise the height of the Weeping Fig’s canopy by approximately 2 metres, and prune branches of the Japanese Photinia growing against and towards the common boundary fence, to provide a clearance of at least 200mm between the Japanese Photinia branches and the fence. (2) Within 60 days of the date of these orders, the respondents, at their expense, shall employ a licenced landscape gardener, with all appropriate insurances, to top dress the area where Weeping Fig roots are present in the respondents’ lawn with an 80:20 sand:soil mix to cover the roots by 10mm and provide a relatively flat, useable surface. (3) Within 90 days of the date of these orders, the respondents, at their expense, shall employ a fencing contractor or licenced landscape gardener, with all appropriate insurances, to replace the fence panel bowed by the Weeping Fig roots. This fence panel will need to be shortened from standard dimensions to provide a gap of approximately 20mm between the bottom plate of the fence panel and the top of the Weeping Fig roots. (4) All pruning shall be completed in accordance with AS 4373:2007 Pruning of amenity trees and Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016. (5) The applicants shall provide access for the respondents’ contractors to complete the various works upon receipt of at least 72 hours’ notice by email, of the date and approximate start time of the works. (6) All works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property – no risk of injury found
Legislation Cited:	Dividing Fences Act 1991, s 13A Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 16, 17
Cases Cited:	Dias v Vaswani [2011] NSWLEC 1274 Jones v Shelley & anor [2016] NSWLEC 1037 Kitching v Shelley & anor [2016] NSWLEC 1036 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452 Wazrin Pty Ltd v Pearson No 2 [2010] NSWLEC 1020 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Australian Standards, AS 4790-2009, Protection of trees on development sites Australian Standards, AS 4373:2007 Pruning of amenity trees Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016 Sydney Water, Tech guidelines Building over adjacent pipe assets
Category:	Principal judgment
Parties:	Arun Bhuta (First Applicant) Anita Bhuta (Second Applicant) Martin Cefai…