Bouveng v Garward - [2018] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation: Bouveng v Garward [2018] NSWLEC 1411
Hearing dates: 14 June 2018
Date of orders: 10 August 2018
Decision date: 10 August 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)   The application is upheld.
(2)   Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, leaving a stump no more than 2 metres in height (they can remove more should they wish).
(3)   The respondents are to give the applicant 7 days’ notice of these works.
(4)   The applicant is to allow all access required for these works during reasonable hours of the day.
(5)   The respondents are to arrange access with other neighbours if required.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – adjoining property – fences not located on boundaries – parties given an opportunity to make submissions on property boundaries
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Cavalier v Young [2011] NSWLEC 1080
Category: Principal judgment
Parties: Luke Bouveng (Applicant)
Rhonda Garward (First Respondent)
Brian Garward (Second Respondent)
Representation: L Bouveng, litigant in person (Applicant)
R and B Garward, litigants in person (Respondents)

File Number(s): 2018/34383
Publication restriction: No

Judgment

Background

Large native trees grow in many of the gardens in this residential area of Wyoming, to the north of Gosford. Luke Bouveng (‘the applicant’) and his partner enjoy the leafy environment. They have set up a playground in their garden for their young child.
To the Bouvengs’ northwest, Rhonda and Brian Garward (‘the respondents’) have a large garden with mature trees. A gum tree (‘the tree’) near the southeast corner of their property grows at an angle due to overshadowing from an adjacent larger tree. Its entire crown overhangs the applicant’s property and another neighbouring property.
Long branches extending over the applicant’s property are in poor condition, some dead, and likely to fall in the near future. If they fell, they would fall onto a relatively high-use area of the applicant’s garden.
Mr Bouveng has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the Garwards’ to remove or cut back the tree.
The Garwards’ concede the tree needs cutting back but they hold the view that, as it is only an issue for the applicant, it is up to the applicant to deal with it. They don’t want the tree removed, fearing it will set a precedent for further tree removals.

Framework of the Trees Act

If I am satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or injury to any person (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters…

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 Bouveng v Garward

Details

AGLC: Bouveng v Garward [2018] NSWLEC 1411
Case: [2018] NSWLEC 1411
Decision Date: 10 August 2018

CaseChat Overview and Summary

The Bouveng v Garward case involved a dispute between neighbours in relation to a tree that stood on the boundary between their properties. The case was heard in the Local Court of New South Wales. The applicant, Bouveng, sought relief from the court to address concerns about the tree's impact on their property, specifically its height and proximity to their home. The respondents, Garward, were the owners of the tree and were resisting the application.

The legal issues before the court included whether the tree constituted an obstruction or nuisance and if the Bouveng had a right to seek its removal or reduction in height. The court had to consider the principles of neighbour law, the reasonable use of property, and the rights of adjoining landowners. Additionally, the court needed to determine the appropriate remedy if the tree was found to be an unreasonable obstruction or nuisance.

The court held that the tree constituted an unreasonable obstruction and nuisance due to its height and proximity to the Bouveng's property. The court found that the respondents had failed to maintain the tree in a manner that did not adversely affect the neighbouring property, thereby breaching their duty of care under neighbour law. The court emphasised the importance of maintaining a balance between the rights of property owners and the need to prevent unreasonable interference with neighbouring properties. The court ordered the respondents to engage a suitably qualified arborist to remove the tree to a specified height and gave the Bouveng notice of these works. The orders also required the respondents to arrange access for the works and for the Bouveng to allow access during reasonable hours.

Orders

Orders of the court

(1) The application is upheld.

(2) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, leaving a stump no more than 2 metres in height (they can remove more should they wish).

(3) The respondents are to give the applicant 7 days’ notice of these works.

(4) The applicant is to allow all access required for these works during reasonable hours of the day.

(5) The respondents are to arrange access with other neighbours if required.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Bouveng v Garward [2018] NSWLEC 1411
Hearing dates:	14 June 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is upheld. (2) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, leaving a stump no more than 2 metres in height (they can remove more should they wish). (3) The respondents are to give the applicant 7 days’ notice of these works. (4) The applicant is to allow all access required for these works during reasonable hours of the day. (5) The respondents are to arrange access with other neighbours if required.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – adjoining property – fences not located on boundaries – parties given an opportunity to make submissions on property boundaries
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080
Category:	Principal judgment
Parties:	Luke Bouveng (Applicant) Rhonda Garward (First Respondent) Brian Garward (Second Respondent)
Representation:	L Bouveng, litigant in person (Applicant) R and B Garward, litigants in person (Respondents)
File Number(s):	2018/34383
Publication restriction:	No