ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BLACKSHAW & EVANS v CAMPBELL (No.2) (Civil Dispute) [2016] ACAT 108
XD 1362/2015
Catchwords: CIVIL DISPUTE – claim in common law nuisance – trees overhanging neighbour’s property - root invasion of neighbour’s property including pipes – loss of amenity and sunlight – appropriate remedy – removal of trees
Legislation cited: Common Boundaries Act 1981 s 22
Trees (Disputes Between Neighbours) Act 2006 (NSW)
Tree Protection Act 2005
Subordinate
Legislation:Tree Protection (Approval Criteria) Determination 2006 (No 2) sch 2
Cases cited:Allied Pastoral Case [1983] 1 NSWLR 1
Blackshaw & Evans v Campbell [2016] ACAT 80
Gales Holdings Pty Limited v Tweed Shire Council [2011] NSWSC 1128
Richmond City Council v Scantelbury (1988) 68 LGRA 49
Robson v Leischke [2008] NSWLEC 152
Young v Wheeler and Anor (1987) Aust Torts Reports ¶ 80 -126
Tribunal: Presidential Member G C McCarthy
Date of Orders: 16 September 2016
Date of Reasons for Decision: 16 September 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1362/2015
BETWEEN:
ADAM BLACKSHAW
ROBYN EVANS
Applicants
AND:
MARYANNE CAMPBELL
Respondent
TRIBUNAL: Presidential Member G McCarthy
DATE:16 September 2016
ORDER
The Tribunal Orders that:
Within 28 days, the respondent remove all of the nine (9) evergreen trees growing on the respondent’s property located on or adjacent to the boundary between the respondent’s property and the applicants’ property as depicted on a survey sketch dated 13 May 2014 prepared by Peter Mayberry, registered surveyor.
The respondent must give the applicants three (3) days’ advice by email of the intended commencement of the work referred to in order 1.
The applicants and the respondent must ensure that any contractors, their servants and agents who are engaged by the respondent to remove the trees referred to in order 1 have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
All amounts payable for removal of the trees in accordance with order 1 are to be paid by the respondent.
In the event that the respondent does not remove the trees within 28 days in accordance with order 1, the applicants may engage contractors to remove the trees at a cost not exceeding $10,000.
If order 5 applies and the applicants engage contractors to remove the trees, the applicants and the respondent must ensure that those contractors, their servants and agents have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
If order 5 applies and contractors remove the trees under contract with the applicants, the respondent must pay the applicants the amount stated on the contractors’ tax invoice or invoices as payable for the work done within 28 days of the applicants giving the respondent a copy of the invoice or invoices.
………………………………..
Presidential Member G C McCarthy
REASONS FOR DECISION
This application concerns a dispute between…
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- AGLC
- Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108
- Case
- [2016] ACAT 108
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Tribunal was whether the trees on the respondent's property constituted a nuisance to the applicants' property and, if so, what the appropriate remedy would be. The Tribunal had to consider whether the trees were causing significant interference with the applicants' use and enjoyment of their property, and if so, whether the remedy of removing the trees was appropriate and proportionate to the nuisance caused.
The Tribunal found that the trees on the respondent's property did indeed constitute a nuisance to the applicants' property, as they were overhanging and their roots were invading the applicants' property, including affecting pipes, and causing a loss of amenity and sunlight. The Tribunal concluded that the appropriate remedy was the removal of the trees, as it was the most effective way to eliminate the nuisance. The Tribunal ordered the respondent to remove the trees within 28 days, and set out specific requirements for the removal process, including the provision of notice to the applicants and ensuring access to the properties for contractors. The Tribunal also set out provisions for the payment of the costs of removal and the consequences if the respondent failed to remove the trees within the specified timeframe.
In summary, the Tribunal ordered the respondent to remove the trees within 28 days, with specific requirements for the removal process and the payment of costs. If the respondent failed to remove the trees within the specified timeframe, the applicants were entitled to engage contractors to remove the trees at a cost not exceeding $10,000, with the respondent required to pay the applicants for the cost of removal.
Orders
Orders of the court
The Tribunal Orders that:
1.
Within 28 days, the respondent remove all of the nine (9) evergreen trees growing on the respondent’s property located on or adjacent to the boundary between the respondent’s property and the applicants’ property as depicted on a survey sketch dated 13 May 2014 prepared by Peter Mayberry, registered surveyor.
2.
The respondent must give the applicants three (3) days’ advice by email of the intended commencement of the work referred to in order 1.
3.
The applicants and the respondent must ensure that any contractors, their servants and agents who are engaged by the respondent to remove the trees referred to in order 1 have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
4.
All amounts payable for removal of the trees in accordance with order 1 are to be paid by the respondent.
5.
In the event that the respondent does not remove the trees within 28 days in accordance with order 1, the applicants may engage contractors to remove the trees at a cost not exceeding $10,000.
6.
If order 5 applies and the applicants engage contractors to remove the trees, the applicants and the respondent must ensure that those contractors, their servants and agents have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
7.
If order 5 applies and contractors remove the trees under contract with the applicants, the respondent must pay the applicants the amount stated on the contractors’ tax invoice or invoices as payable for the work done within 28 days of the applicants giving the respondent a copy of the invoice or invoices.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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