Cain v Mitchell - [2018] NSWLEC 1694

Land and Environment Court

New South Wales

Medium Neutral Citation: Cain v Mitchell [2018] NSWLEC 1694
Hearing dates: 20 December 2018
Date of orders: 31 January 2019
Decision date: 20 December 2018
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1)   Tree T1 and T2 are to be removed, along with all roots overlapping and within 150 mm of the boundary, at the respondent’s expense.
(2)   Whilst removing T2, any fronds from T3 and T4, currently impacting, or likely to impact the applicants’ house in the near future, shall be removed at the respondent’s expense.
(3)   Branches from T5 should be pruned back to branch collars so the overhang is approximately in line with the bottom storey roof line. This work is at the applicants’ expense.
(4)   Branches from T6 should be pruned back to branch collars approximately in line with the property boundary. This work is also at the applicants’ expense.
(5)   All tree work shall be undertaken by AQF level 3 qualified arborist, meet Safework NSW Work, Health and Safety guidelines, and comply with AS 4373-2007 Australian Pruning Standard. These works will likely require access to both properties, and such access is to be provided during reasonable working hours, subject to 24 hours written notice being provided.
(6)   With respect to the front masonry wall, Mr and Mrs Cain are to seek three written builder’s quotes for replacement of the approximately 800mm tall single brick boundary wall, to be constructed on a ‘like for like’ basis on the existing foundations. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes.
(7)   With respect to the timber paling fence, Mr and Mrs Cain are to seek three written builder’s quotes for replacement of the front half (approximately) of the paling fence, plus replacement of palings in the rear half on a ‘need’ basis. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes.
(8)   With respect to abrasive damage and corrosion to the metal deck roof, rather than replacement, Mr and Mrs Cain are to seek three written quotes from appropriate paint specialists for repair. The quotes are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 100% of the lowest price for these repairs within 48 hours of receipt of these quotes.
(9)   Upon receipt of these orders, Ms Mitchell is to provide contact details including email address to Mr and Mrs Cain, and transmission of quotes to this email address shall…

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 Cain v Mitchell

Details

AGLC: Cain v Mitchell [2018] NSWLEC 1694
Case: [2018] NSWLEC 1694
Decision Date: 20 December 2018

CaseChat Overview and Summary

The case of Cain v Mitchell was heard in a relevant Australian court, involving a dispute between Mr and Mrs Cain, the applicants, and Ms Mitchell, the respondent. The applicants sought orders concerning the removal and pruning of trees, as well as repairs to a boundary wall, fence, and metal deck roof on their property, which were allegedly affected by the respondent’s trees and their roots. The applicants argued that the trees on the respondent’s land were encroaching on their property, causing damage and inconvenience.

The court was tasked with deciding several key legal issues, including whether the trees on the respondent’s property constituted an obstruction and if their removal or pruning was necessary for the applicants’ enjoyment and comfort of their property. Additionally, the court needed to determine the extent to which the respondent was responsible for the damage to the applicants' boundary wall, fence, and metal deck roof, and whether the applicants were entitled to financial compensation for these damages. The court also had to consider the appropriate measures to be taken to address the issues raised by the applicants.

In reaching its decision, the court examined evidence related to the encroachment of the trees and their roots, as well as expert opinions on the necessary tree work and the extent of the damage to the applicants' property. The court found that the trees on the respondent’s property did indeed encroach on the applicants' land, causing damage and inconvenience. As such, the court ordered the removal and pruning of specific trees and roots, as well as the replacement of the damaged boundary wall, fence, and repairs to the metal deck roof. The court also stipulated that the works must be carried out by qualified arborists and builders and in accordance with relevant safety and industry standards.

The final orders of the court included detailed directives for the removal and pruning of trees, the replacement of the boundary wall and fence, and the repair of the metal deck roof. Additionally, the court specified that the respective quotes for these works and repairs were to be submitted to the respondent within a certain timeframe, with the respondent required to pay a specified percentage of the lowest quotes. The court further provided that if the respective quotes were not provided within the stipulated timeframe, the orders for the replacement of the boundary wall, fence, and repairs to the metal deck roof would lapse.

Orders

Orders of the court

The orders of the Court are:

(1) Tree T1 and T2 are to be removed, along with all roots overlapping and within 150 mm of the boundary, at the respondent’s expense.

(2) Whilst removing T2, any fronds from T3 and T4, currently impacting, or likely to impact the applicants’ house in the near future, shall be removed at the respondent’s expense.

(3) Branches from T5 should be pruned back to branch collars so the overhang is approximately in line with the bottom storey roof line. This work is at the applicants’ expense.

(4) Branches from T6 should be pruned back to branch collars approximately in line with the property boundary. This work is also at the applicants’ expense.

(5) All tree work shall be undertaken by AQF level 3 qualified arborist, meet Safework NSW Work, Health and Safety guidelines, and comply with AS 4373-2007 Australian Pruning Standard. These works will likely require access to both properties, and such access is to be provided during reasonable working hours, subject to 24 hours written notice being provided.

(6) With respect to the front masonry wall, Mr and Mrs Cain are to seek three written builder’s quotes for replacement of the approximately 800mm tall single brick boundary wall, to be constructed on a ‘like for like’ basis on the existing foundations. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes.

(7) With respect to the timber paling fence, Mr and Mrs Cain are to seek three written builder’s quotes for replacement of the front half (approximately) of the paling fence, plus replacement of palings in the rear half on a ‘need’ basis. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes.

(8) With respect to abrasive damage and corrosion to the metal deck roof, rather than replacement, Mr and Mrs Cain are to seek three written quotes from appropriate paint specialists for repair. The quotes are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 100% of the lowest price for these repairs within 48 hours of receipt of these quotes.

(9) Upon receipt of these orders, Ms Mitchell is to provide contact details including email address to Mr and Mrs Cain, and transmission of quotes to this email address shall be deemed as providing them to Ms Mitchell.

(10) If the respective quotes are not provided to Ms Mitchell within 60 days of the date of these orders, orders (6)-(8) will lapse.

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:	Cain v Mitchell [2018] NSWLEC 1694
Hearing dates:	20 December 2018
Date of orders:	31 January 2019
Decision date:	20 December 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Tree T1 and T2 are to be removed, along with all roots overlapping and within 150 mm of the boundary, at the respondent’s expense. (2) Whilst removing T2, any fronds from T3 and T4, currently impacting, or likely to impact the applicants’ house in the near future, shall be removed at the respondent’s expense. (3) Branches from T5 should be pruned back to branch collars so the overhang is approximately in line with the bottom storey roof line. This work is at the applicants’ expense. (4) Branches from T6 should be pruned back to branch collars approximately in line with the property boundary. This work is also at the applicants’ expense. (5) All tree work shall be undertaken by AQF level 3 qualified arborist, meet Safework NSW Work, Health and Safety guidelines, and comply with AS 4373-2007 Australian Pruning Standard. These works will likely require access to both properties, and such access is to be provided during reasonable working hours, subject to 24 hours written notice being provided. (6) With respect to the front masonry wall, Mr and Mrs Cain are to seek three written builder’s quotes for replacement of the approximately 800mm tall single brick boundary wall, to be constructed on a ‘like for like’ basis on the existing foundations. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes. (7) With respect to the timber paling fence, Mr and Mrs Cain are to seek three written builder’s quotes for replacement of the front half (approximately) of the paling fence, plus replacement of palings in the rear half on a ‘need’ basis. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes. (8) With respect to abrasive damage and corrosion to the metal deck roof, rather than replacement, Mr and Mrs Cain are to seek three written quotes from appropriate paint specialists for repair. The quotes are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 100% of the lowest price for these repairs within 48 hours of receipt of these quotes. (9) Upon receipt of these orders, Ms Mitchell is to provide contact details including email address to Mr and Mrs Cain, and transmission of quotes to this email address shall…