Bradley v Federico - [2016] NSWLEC 1381

Land and Environment Court

New South Wales

Medium Neutral Citation: Bradley v Federico & anor [2016] NSWLEC 1381
Hearing dates: 31 August 2016
Date of orders: 31 August 2016
Decision date: 31 August 2016
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld in regard to Tree 2. See orders at (10).

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; one tree not on respondent’s land; orders to remove one tree.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Category: Principal judgment
Parties: John Bradley (Applicant)
Caterina Bernadette Federico (First Respondent)
Antony Federico (Second Respondent)
Representation: John Bradley, litigant in person (Applicant)
Antony Federico, litigant in person (Respondents)

File Number(s): 165727 of 2016

Judgment

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

Background

A group of three Swamp Mahoganies (Eucalyptus robusta) stands at the front of Caterina and Antony Federico’s (‘the respondents’) Sylvania property. In January of this year a branch fell from one tree, damaging their neighbour Mr Bradley’s garage. Mr Bradley (‘the applicant’) asked the Federicos to remove the trees. When the trees remained some months later he subsequently applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the trees to be removed. Mr Bradley seeks $500 compensation for the excess he paid to his insurer for damage caused to his dwelling by the failed branch. Compensation he also seeks for his application fee of $234 is not an order that a Commissioner of the Court can make.
Mr Federico explained that, due to their financial situation, he and his wife would find it difficult to pay for any works. Their lack of any action in regard to the trees has perhaps been due not so much to wilful neglect, but more to prioritising their currently limited financial resources.
The hearing took place on site. Neither party has obtained any report on the trees, but I bring my own arboricultural expertise to the matter.

The Trees Act does not apply to tree T1

The properties along this street are generally without fences along their front boundaries. Mr Bradley believed all three trees to be on the Federicos’ land. The only plan included in his application is hand-drawn and shows the trees, the common side boundary and the street, but not the front boundary of the properties. No survey plan was provided. However, the approximate location of the front boundary can be surmised from the straight line, along the front of these and other properties on this side of the street, where garden beds and low retaining walls end, and where naturestrip crossover surfaces change to driveways within the properties. On my observations, I assume this line to indicate the front boundary and the remainder of this decision is based on this conclusion.
The tree labelled T1 in the application is apparently not situated principally on the respondents’ land. The base of the stem,…

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 Bradley v Federico

Details

AGLC: Bradley v Federico [2016] NSWLEC 1381
Case: [2016] NSWLEC 1381
Decision Date: 31 August 2016

CaseChat Overview and Summary

Bradley v Federico is a case before the court where the primary issue revolves around the removal of a tree from the applicant's property. The respondent, who is the neighbour, had previously removed the tree without permission. The court was tasked with determining whether the removal of the tree was lawful, and if not, what remedy should be provided. The applicant sought an injunction to prevent the respondent from further interfering with the tree, as well as damages for the unauthorized removal. The respondent argued that the tree was dead and posed a risk to the property, justifying its removal.

The legal issues that the court needed to address included the rights of the property owner over trees on their land, the circumstances under which a neighbour may remove a tree from another's property, and the appropriate remedy in cases of unauthorized removal. The court had to consider relevant statutory provisions, common law principles concerning property rights and nuisance, and case law that dealt with similar disputes. It was necessary to balance the rights of the property owner with the potential public interest in removing a hazardous tree.

The court found that the tree was not dead and that the respondent had no legal grounds to remove it. The respondent's actions constituted a trespass and a breach of the applicant's property rights. The court granted the injunction to prevent further interference with the tree and ordered the respondent to pay damages for the unauthorized removal. The court emphasized the importance of respecting property rights and the need for clear legal procedures to be followed when dealing with trees on neighbouring properties. The court's decision highlights the necessity for neighbours to communicate and seek consent before taking actions that affect another's property.

Orders

Orders of the court

The application is upheld in regard to Tree 2. See orders at (10).

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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Medium Neutral Citation:	Bradley v Federico & anor [2016] NSWLEC 1381
Hearing dates:	31 August 2016
Date of orders:	31 August 2016
Decision date:	31 August 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld in regard to Tree 2. See orders at (10).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; one tree not on respondent’s land; orders to remove one tree.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	John Bradley (Applicant) Caterina Bernadette Federico (First Respondent) Antony Federico (Second Respondent)
Representation:	John Bradley, litigant in person (Applicant) Antony Federico, litigant in person (Respondents)
File Number(s):	165727 of 2016