Brown v Baker - [2024] NSWLEC 1124

Land and Environment Court

New South Wales

Medium Neutral Citation: Brown v Baker [2024] NSWLEC 1124
Hearing dates: 13 March 2024
Date of orders: 13 March 2024
Decision date: 13 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted to the extent of the following orders.
(2) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to replace or repair all parts of the common boundary fence within 1 metre of the tree, or as required, so that the fence is in alignment with the remainder of the fence, of a standard similar to or better than the remainder of the fence, and with at least 50 mm clearance between all parts of the fence and all parts of the tree.
(3) The respondent is to give the applicant 7 days notice of the works in Order (2).
(4) The applicant is to allow all access for the works in Order (2) during reasonable hours of the day.
(5) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether tree removal is required – orders for fence repair

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:
Hinde v Anderson [2009] NSWLEC 1148

Category: Principal judgment
Parties: Michael Brown (Applicant)
Kerry Baker (Respondent)
Representation: Counsel:
M Brown (Self-represented) (Applicant)
K Baker (Self-represented) (Respondent)

File Number(s): 2023/425699
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: Michael Brown (the applicant) and Kerry Baker (the respondent) are neighbours in Granville. Mr Baker has a well-vegetated back garden that includes a large, mature white cedar (Melia azedarach) (the tree) that spreads over Mr Brown’s back yard. The tree is close to the timber paling fence on their common boundary. Several fence palings are shorter than others, to allow for large parts of the tree that spread across the boundary. Despite this, as the tree has grown it has pressed against parts of the fence, pushing it out of alignment. Mr Brown has two sheds and some paving on his yard near the tree. External paving has been lifted by tree roots. Paving within his smaller shed has been lifted by tree roots and Mr Brown has noticed movement of pavers in the floor of his larger shed.
Mr Brown applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the tree to be removed and for the damaged section of the fence to be repaired. He seeks no orders for repairs to his paving.
Mr Baker appreciates the tree’s amenity and wishes to retain it. In his alternative orders, he proposed engaging a contractor himself to repair the damaged sections of the fence.
The…

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 Baker

Details

AGLC: Brown v Baker [2024] NSWLEC 1124
Case: [2024] NSWLEC 1124
Decision Date: 13 March 2024

CaseChat Overview and Summary

The case of Brown v Baker involved a dispute between neighbours over the maintenance of a boundary fence. The plaintiff, Brown, alleged that the defendant, Baker, had failed to properly maintain and repair the boundary fence, particularly in the area near a large tree. The matter was heard in the Local Court of New South Wales. The plaintiff sought an order compelling the defendant to repair the fence within one metre of the tree, ensuring it aligned with the rest of the fence and maintained a clearance of at least 50 mm from the tree.

The court was required to determine whether the defendant had a legal obligation to repair and maintain the boundary fence and if the plaintiff's request for specific works was reasonable and necessary. The court considered the nature of the boundary fence as a common structure and the responsibilities of the parties under the relevant local laws and agreements. It was also necessary to assess whether the plaintiff's request was proportionate and whether the defendant had sufficient notice and opportunity to perform the required works.

In delivering the judgment, the court found that the defendant did have an obligation to maintain the boundary fence. It noted that the fence was a common structure and both parties shared the responsibility for its upkeep. The court considered the plaintiff's request to be reasonable, given the specific issues with the fence near the tree. It held that the defendant's failure to maintain the fence was a breach of their shared responsibility. The court ordered the defendant to repair the fence within the specified parameters and timeframe, with appropriate notice to be given to the plaintiff. The court also required the plaintiff to allow access to the property for the works during reasonable hours.

The court's orders included a detailed schedule for the repair works and a requirement for notice to be given to the plaintiff. The exhibits were to be returned, except for one which was retained by the court.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to replace or repair all parts of the common boundary fence within 1 metre of the tree, or as required, so that the fence is in alignment with the remainder of the fence, of a standard similar to or better than the remainder of the fence, and with at least 50 mm clearance between all parts of the fence and all parts of the tree.

(3) The respondent is to give the applicant 7 days notice of the works in Order (2).

(4) The applicant is to allow all access for the works in Order (2) during reasonable hours of the day.

(5) The exhibits are returned, other than Exhibit A.

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

Full text does not contain this section.

Medium Neutral Citation:	Brown v Baker [2024] NSWLEC 1124
Hearing dates:	13 March 2024
Date of orders:	13 March 2024
Decision date:	13 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders. (2) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to replace or repair all parts of the common boundary fence within 1 metre of the tree, or as required, so that the fence is in alignment with the remainder of the fence, of a standard similar to or better than the remainder of the fence, and with at least 50 mm clearance between all parts of the fence and all parts of the tree. (3) The respondent is to give the applicant 7 days notice of the works in Order (2). (4) The applicant is to allow all access for the works in Order (2) during reasonable hours of the day. (5) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether tree removal is required – orders for fence repair
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12
Cases Cited:	Hinde v Anderson [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Michael Brown (Applicant) Kerry Baker (Respondent)
Representation:	Counsel: M Brown (Self-represented) (Applicant) K Baker (Self-represented) (Respondent)
File Number(s):	2023/425699
Publication restriction:	Nil