Brown v Alexander - [2023] NSWLEC 1810

Land and Environment Court

New South Wales

Medium Neutral Citation: Brown v Alexander [2023] NSWLEC 1810
Hearing dates: 20 February 2024
Date of orders: 03 June 2024
Decision date: 03 June 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1)   The respondent shall pay the applicant $700.00 by electronic funds transfer (EFT) as compensation for the damage insurance excess, within 14 days of receipt of a paid invoice from the applicant.
(2)   The respondent, at her expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to reduction prune all branches from the tree that are overhanging, and within 2 metres of overhanging, the applicant’s dwelling.
(3)   The respondent, at her expense, shall employ the arborists to prune all deadwood above 20 millimetres diameter at the branch collar from the area of the tree’s canopy overhanging the applicant’s land.
(4)   The works in Orders (2) and (3) shall be completed within 90 days of the date of these orders and during reasonable daytime working hours.
(5)   All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(6)   The applicant shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the respondent by email, advising the date and approximate start time. A copy of the arborist’s insurance Certificates of Currency shall be attached to the email.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to dwelling roof – tree removal proposed – significant s 12 considerations – pruning ordered

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes between Neighbours) Act 2006,
Pt 2 ss 6, 7, 8, 9 10, 12

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Standards Australia, AS 4373:2007. Pruning of amenity trees, 2007
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Graeme Brown (Applicant)
Vivienne Alexander (Respondent)
Representation: G Brown (Self represented) (Applicant)
V Alexander (Self represented) (Respondent)

File Number(s): 2023/351738
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Ms Vivienne Alexander, the respondent, has a tall Eucalyptus pilularis (Blackbutt) (the tree), growing in the front yard of her property in Port Stephens. The tree is mature and long established, about 24 metres (m) tall, with a strong, straight trunk and a diameter at breast height (DBH) greater than 1 m. The tree previously had two trunks, but one was removed about four years ago after it was damaged by lightning strike.
The tree is located close to a side boundary shared with the applicant, Mr Graeme Brown, and its canopy overhung parts of the applicant’s driveway, front yard, and dwelling.
Mr Brown claimed that falling branches had damaged his dwelling’s…

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 Brown v Alexander

Details

AGLC: Brown v Alexander [2023] NSWLEC 1810
Case: [2023] NSWLEC 1810
Decision Date: 03 June 2024

CaseChat Overview and Summary

The plaintiff, Brown, brought an action against the defendant, Alexander, in the Local Court of New South Wales, seeking compensation and an injunction to address issues arising from a tree on Alexander's property that had caused damage to Brown's property and posed a safety risk. The plaintiff alleged that the tree, which was located on Alexander's property, had caused damage to Brown's roof and posed a risk to Brown's safety due to overhanging branches and deadwood. Brown sought compensation for the damage insurance excess, as well as an injunction requiring Alexander to prune the tree.

The primary legal issues the court needed to determine were whether Alexander was liable for the damage caused by the tree and whether Brown was entitled to an injunction to have the tree pruned. The court needed to consider the principles of nuisance and negligence, as well as relevant statutory obligations and industry standards for tree pruning. The court also needed to determine whether the requested injunction was appropriate and whether any compensation was warranted.

In its judgment, the court found that Alexander was liable for the damage caused by the tree and that Brown was entitled to compensation for the damage insurance excess. The court found that Alexander had failed to take reasonable steps to maintain the tree in a safe condition, which had resulted in damage to Brown's property. The court also found that an injunction was appropriate to require Alexander to prune the tree in a manner that complied with industry standards and to ensure that the tree did not pose a risk to Brown's safety. The court ordered Alexander to pay compensation to Brown and to employ experienced arborists to prune the tree in accordance with industry standards.

The court made several orders to address the issues in the case. Alexander was ordered to pay Brown $700.00 as compensation for the damage insurance excess. Alexander was also ordered to employ experienced arborists to prune the tree in accordance with industry standards, including reduction pruning of overhanging branches and removal of deadwood above 20 millimetres diameter at the branch collar. The works were to be completed within 90 days and had to comply with relevant standards and guidelines. Brown was required to provide access to his property for the works upon receipt of notice from Alexander.

Orders

Orders of the court

The Court orders that:

(1) The respondent shall pay the applicant $700.00 by electronic funds transfer (EFT) as compensation for the damage insurance excess, within 14 days of receipt of a paid invoice from the applicant.

(2) The respondent, at her expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to reduction prune all branches from the tree that are overhanging, and within 2 metres of overhanging, the applicant’s dwelling.

(3) The respondent, at her expense, shall employ the arborists to prune all deadwood above 20 millimetres diameter at the branch collar from the area of the tree’s canopy overhanging the applicant’s land.

(4) The works in Orders (2) and (3) shall be completed within 90 days of the date of these orders and during reasonable daytime working hours.

(5) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) The applicant shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the respondent by email, advising the date and approximate start time. A copy of the arborist’s insurance Certificates of Currency shall be attached to the email.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Brown v Alexander [2023] NSWLEC 1810
Hearing dates:	20 February 2024
Date of orders:	03 June 2024
Decision date:	03 June 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The respondent shall pay the applicant $700.00 by electronic funds transfer (EFT) as compensation for the damage insurance excess, within 14 days of receipt of a paid invoice from the applicant. (2) The respondent, at her expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to reduction prune all branches from the tree that are overhanging, and within 2 metres of overhanging, the applicant’s dwelling. (3) The respondent, at her expense, shall employ the arborists to prune all deadwood above 20 millimetres diameter at the branch collar from the area of the tree’s canopy overhanging the applicant’s land. (4) The works in Orders (2) and (3) shall be completed within 90 days of the date of these orders and during reasonable daytime working hours. (5) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (6) The applicant shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the respondent by email, advising the date and approximate start time. A copy of the arborist’s insurance Certificates of Currency shall be attached to the email.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to dwelling roof – tree removal proposed – significant s 12 considerations – pruning ordered
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes between Neighbours) Act 2006, Pt 2 ss 6, 7, 8, 9 10, 12
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Standards Australia, AS 4373:2007. Pruning of amenity trees, 2007 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Graeme Brown (Applicant) Vivienne Alexander (Respondent)
Representation:	G Brown (Self represented) (Applicant) V Alexander (Self represented) (Respondent)
File Number(s):	2023/351738
Publication restriction:	Nil