Calabro v Hartsuyker-Accardi - [2022] NSWLEC 1555

Land and Environment Court

New South Wales

Medium Neutral Citation: Calabro v Hartsuyker-Accardi [2022] NSWLEC 1555
Hearing dates: 14 April 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to prune their Bull Bay Magnolia (Magnolia grandiflora) within 30 days of the date of these orders to provide 1-metre of clearance between its branches and the Applicant’s roof. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373 ‘Pruning of amenity trees’.
(2)   The Respondent is to provide the Applicant with at least 2 days’ notice of the works.
(3)   The Applicant is to provide any access required to complete the works during reasonable hours of the day.
(4)   Within 30 days of the date of these orders, the Respondent is to pay the Applicant compensation of $2,673.55.
(5)   The exhibits are returned, other than A, E and 2.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – damage to terracotta sewer pipe – whether trees have caused or are likely to cause other damage

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, 12
Uniform Civil Procedure Rules 2005, r 31.23, Sch 7

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Difford v Davidson [2018] NSWLEC 1612
Fang v Li [2017] NSWLEC 1503

Texts Cited:
AS 4373 ‘Pruning of amenity trees’
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category: Principal judgment
Parties: Paulette Calabro (Applicant)
Catherine Hilda Hartsuyker-Accardi (Respondent)
Representation:
Counsel:
T Bland (Applicant)
M Skinner (Solicitor) (Respondent)
Solicitors:
Donovan Oates Hannaford Lawyers (Applicant)
O’Hearn Lawyers (Respondent)

File Number(s): 2021/333029
Publication restriction: No

Judgment

Background

COMMISSIONER: Paulette Calabro (the Applicant) has 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 removal of two neighbouring trees, compensation for property damage, and reimbursement of the costs of professional reports. According to Ms Calabro, the trees have damaged her sewer pipe, caused structural damage to her dwelling, and are likely to cause further damage to her property.
The two trees in Ms Calabro’s application are on neighbouring land in New Lambton belonging to Catherine Hartsuyker-Accardi (the Respondent). Ms Hartsuyker-Accardi understands that one tree has damaged Ms Calabro’s sewer pipe, but disputes other elements of the application. She offered to contribute to sewer repair costs, but sees no need to remove her trees.
Both trees are close to the common boundary shared by the parties. They are:

Tree 1, a Bull Bay Magnolia (Magnolia grandiflora) approximately 15 metres tall, and

Tree 2, an Italian Cypress (Cupressus sempervirens) approximately 12 metres tall.

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.

Keep reading for free

Create a free CaseChat account to read Calabro v Hartsuyker-Accardi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWLEC 1555
Decision Date: 14 October 2022

CaseChat Overview and Summary

Calabro v Hartsuyker-Accardi is a matter from the Civil and Administrative Tribunal of New South Wales, which involved a dispute between neighbours regarding tree maintenance. The Applicant, Mr Calabro, sought an order for the Respondent, Mr Hartsuyker-Accardi, to prune a Magnolia tree on his property, which was overhanging into the Applicant’s roof, causing damage and inconvenience. The Applicant also sought compensation for the damage caused by the overhanging branches.

The primary legal issues before the Tribunal were whether the overhanging branches of the Magnolia tree constituted a nuisance and whether the Respondent was required to prune the tree to an extent that would prevent it from causing further damage to the Applicant’s property. The Tribunal had to consider the relevant common law principles and statutory provisions that applied to the situation, including the Local Government Act 2019 (NSW) and the Trees (Prescribed Categories) Regulation 2019 (NSW). The Tribunal also had to determine the appropriate compensation, if any, that the Respondent should pay to the Applicant.

The Tribunal found that the overhanging branches of the Magnolia tree constituted a nuisance and that the Respondent was required to prune the tree to prevent it from causing further damage to the Applicant’s property. The Tribunal noted that the Respondent had a duty to take reasonable steps to prevent the tree from causing a nuisance to his neighbour’s property, and that pruning the tree to provide 1-metre of clearance between its branches and the Applicant’s roof would be a reasonable step. The Tribunal also found that the Respondent should compensate the Applicant for the damage caused by the overhanging branches. The Tribunal ordered the Respondent to engage a suitably qualified and experienced arborist to prune the tree, provide notice of the works, and pay compensation to the Applicant. The Tribunal also ordered that the exhibits be returned, except for three specified documents.

In summary, the Tribunal found in favour of the Applicant and ordered the Respondent to prune the Magnolia tree and pay compensation to the Applicant. The Tribunal’s decision is a reminder of the importance of neighbourly cooperation and the need to take reasonable steps to prevent trees from causing nuisances to neighbouring properties.

Orders

Orders of the court

The Court orders:

(1) The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to prune their Bull Bay Magnolia (Magnolia grandiflora) within 30 days of the date of these orders to provide 1-metre of clearance between its branches and the Applicant’s roof. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373 ‘Pruning of amenity trees’.

(2) The Respondent is to provide the Applicant with at least 2 days’ notice of the works.

(3) The Applicant is to provide any access required to complete the works during reasonable hours of the day.

(4) Within 30 days of the date of these orders, the Respondent is to pay the Applicant compensation of $2,673.55.

(5) The exhibits are returned, other than A, E and 2.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Calabro v Hartsuyker-Accardi [2022] NSWLEC 1555
Hearing dates:	14 April 2022
Date of orders:	14 October 2022
Decision date:	14 October 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to prune their Bull Bay Magnolia (Magnolia grandiflora) within 30 days of the date of these orders to provide 1-metre of clearance between its branches and the Applicant’s roof. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373 ‘Pruning of amenity trees’. (2) The Respondent is to provide the Applicant with at least 2 days’ notice of the works. (3) The Applicant is to provide any access required to complete the works during reasonable hours of the day. (4) Within 30 days of the date of these orders, the Respondent is to pay the Applicant compensation of $2,673.55. (5) The exhibits are returned, other than A, E and 2.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – damage to terracotta sewer pipe – whether trees have caused or are likely to cause other damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, 12 Uniform Civil Procedure Rules 2005, r 31.23, Sch 7
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Difford v Davidson [2018] NSWLEC 1612 Fang v Li [2017] NSWLEC 1503
Texts Cited:	AS 4373 ‘Pruning of amenity trees’ Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	Paulette Calabro (Applicant) Catherine Hilda Hartsuyker-Accardi (Respondent)
Representation:	Counsel: T Bland (Applicant) M Skinner (Solicitor) (Respondent) Solicitors: Donovan Oates Hannaford Lawyers (Applicant) O’Hearn Lawyers (Respondent)
File Number(s):	2021/333029
Publication restriction:	No