Burbridge v Gounakis - [2019] NSWLEC 1202

Land and Environment Court

New South Wales

Medium Neutral Citation: Burbridge v Gounakis [2019] NSWLEC 1202
Hearing dates: 2 May 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)   The application for compensation is refused.
(2)   The application for tree removal is granted.
(3)   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 to no more than 50 cm above ground level.
(4)   The works ordered above must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
(5)   The respondents are to give the applicant two days’ notice of the works.
(6)   The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – falling limbs – risk of damage and injury – change in circumstance since previous decision – root damage – respondents not aware of damage prior to application – orders for tree removal – no orders for compensation
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Hinde v Anderson and anor [2009] NSWLEC 1148
Yang v Scerri [2007] NSWLEC 592
Texts Cited: Safe Work Australia: Guide to managing risks of tree trimming and removal work
Category: Principal judgment
Parties: Cecily Burbridge (Applicant)
Dimitri Gounakis (First Respondent)
Kathy Gounakis (Second Respondent)
Representation: D Burbridge, agent (Applicant)
D Gounakis and K Gounakis, litigants in person (Respondents)

File Number(s): 2019/33153
Publication restriction: No

Judgment

Background

Since July 2016 when this Court gave orders for Dimitri and Kathy Gounakis (‘the respondents’) to prune their Liquidambar tree (‘the tree’), more branches have apparently broken and fallen from the tree on multiple occasions. Cecily Burbridge (‘the applicant’), neighbour to the respondents, has again applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for removal of the tree to prevent branches falling into her property where they might cause damage or injury.
Last year Mrs Burbridge also noticed tree roots across her lawn and in the vicinity of a concrete pad around her clothesline. The concrete is partly displaced and uneven. She seeks compensation for the cost of removing and replacing the concrete, quoted at $4,600. Mrs Burbridge further says she has been unable to maintain part of her garden due to the risk of injury from falling branches, so seeks compensation of $380 quoted for restoring her garden to its previous state.
Mr and Mrs Gounakis wish to retain the tree if possible. They have offered to prune the tree.

Framework of the Trees Act

Mrs Burbridge does not claim that fallen branches damaged her property. Considering the application, the jurisdiction of the Trees Act, and the Court’s decision in the earlier proceedings about…

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 Burbridge v Gounakis

Details

AGLC: Burbridge v Gounakis [2019] NSWLEC 1202
Case: [2019] NSWLEC 1202
Decision Date: 03 May 2019

CaseChat Overview and Summary

In the matter of Burbridge v Gounakis, the applicant sought both compensation for damages and the removal of a tree that had caused harm to their property. The case was heard in the local court of New South Wales. The dispute centred on the liability for damages caused by the tree and the obligation to remove it, with the applicant contending that the tree posed a risk to their property and the respondents denying any liability.

The primary legal issues for the court to address were whether the respondents were liable for the damages caused by the tree and whether the tree should be removed under specific conditions. The court had to consider the evidence presented regarding the origin and maintenance of the tree, the extent of the damage caused, and the obligations of the parties under local environmental and property laws.

The court found that while the respondents were not liable for the damages caused by the tree, they were responsible for its removal due to the risk it posed. The judge ruled that the tree should be cut down to a height of 50 cm above ground level by a qualified arborist within 60 days. The work was to be conducted in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. Additionally, the respondents were required to notify the applicant two days before carrying out the works, and the applicant had to provide access to their property during reasonable hours.

These orders effectively resolved the dispute by mandating the removal of the tree while denying the applicant's claim for compensation. The specific conditions for the tree's removal, including the qualifications of the arborist and adherence to safety guidelines, were outlined to ensure the works were conducted safely and effectively.

Orders

Orders of the court

(1) The application for compensation is refused.

(2) The application for tree removal is granted.

(3) 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 to no more than 50 cm above ground level.

(4) The works ordered above must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(5) The respondents are to give the applicant two days’ notice of the works.

(6) The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.

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:	Burbridge v Gounakis [2019] NSWLEC 1202
Hearing dates:	2 May 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application for compensation is refused. (2) The application for tree removal is granted. (3) 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 to no more than 50 cm above ground level. (4) The works ordered above must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (5) The respondents are to give the applicant two days’ notice of the works. (6) The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – falling limbs – risk of damage and injury – change in circumstance since previous decision – root damage – respondents not aware of damage prior to application – orders for tree removal – no orders for compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Hinde v Anderson and anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia: Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Cecily Burbridge (Applicant) Dimitri Gounakis (First Respondent) Kathy Gounakis (Second Respondent)
Representation:	D Burbridge, agent (Applicant) D Gounakis and K Gounakis, litigants in person (Respondents)
File Number(s):	2019/33153
Publication restriction:	No