Callaghan v Beverley - [2020] NSWLEC 1117

Land and Environment Court

New South Wales

Medium Neutral Citation: Callaghan v Beverley [2020] NSWLEC 1117
Hearing dates: 30 January 2020
Date of orders: 30 January 2020
Decision date: 30 January 2020
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Orders of the Court are:
(1) Within 60 days of these orders, the respondents shall contract an arborist, with all appropriate insurances, to reduction prune one branch of the Fig, which extends over the applicants’ roof in a south – westerly direction, back to an appropriate junction within the canopy, such that the pruning complies with AS4573:2007 (Pruning of Amenity Trees).
(2) Council shall develop a level 2 inspection strategy (based on ISA Tree Risk Assessment Qualification format) and a pruning strategy for the Fig tree (particularly in regard to branches overhanging the adjacent nature strip), and implement it for a period of five year from the date of these orders. This strategy shall entail inspections completed annually, plus after major storms, and they shall be undertaken at Council’s expense. Any tree pruning recommended from these inspections shall be subject to standard Council application requirements, and fees, and any such works are to be completed at the applicants’ and or respondents’ expense.
(3) All pruning shall comply with AS4573:2007 (Pruning of Amenity trees).
(4) All pruning and inspections shall be completed by arborists with a minimum Arboriculture qualification of AQF level 3.
(5) All tree works shall comply with the Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(6) The cost burden for the pruning in Order 1 shall be shared equally between the parties. Upon completion of this work, the respondent shall supply the applicant with a copy of the paid invoice, and the applicant shall reimburse the respondent for 50% of this cost, within 21 days.
(7) The applicant shall provide access for completion of this pruning upon receipt of at least 48 hours written notice of the date and approximate starting time of the works.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branches – apprehension of injury
Legislation Cited: Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedures Rules 2005
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705; [2001] NSWCA 305
McPherson v Lake [2017] NSWLEC 1081
Owners Corporation Strata Plan 56927 v Horner [2012] NSWLEC 1146
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Texts Cited: AS4573:2007 (Pruning of Amenity Trees)
Kiama Development Control Plan 2012
Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work’, 2016
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017
Category: Principal judgment
Parties: Bernard Callaghan (Applicant)
Robyn Beverley (First Respondent)
Kiama Municipal Council (Second Respondent)
Representation:
Counsel:
B Callaghan (Litigant in Person) (Applicant)
R Beverley (Litigant…

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 Callaghan v Beverley

Details

AGLC: Callaghan v Beverley [2020] NSWLEC 1117
Case: [2020] NSWLEC 1117
Decision Date: 30 January 2020

CaseChat Overview and Summary

The dispute in Callaghan v Beverley was heard in the Land and Environment Court of New South Wales, where the applicants sought orders to address an issue concerning a Fig tree on the respondents' property. The applicants alleged that a branch of the Fig tree extended over their roof and posed a safety hazard. The applicants sought relief under the Trees (Private Land) Act 2009 and the Trees (Public Land) Act 1995, requesting the pruning of the tree branch and the implementation of an inspection and maintenance strategy to prevent future issues. The court was required to determine whether the applicants had established grounds for the relief sought and whether the orders requested were appropriate and proportionate.

The central legal issue before the court was whether the applicants had demonstrated a sufficient risk to their safety or property that warranted the intervention of the court under the statutory framework. The court had to consider the evidence provided by the parties, including expert evidence from arborists, to assess the potential hazards posed by the Fig tree. The court also needed to evaluate whether the proposed orders for pruning and ongoing maintenance were necessary and reasonable measures to mitigate any identified risks.

In its reasoning, the court found that the applicants had established a risk to their safety and property due to the overhanging branch of the Fig tree. The court acknowledged the potential for significant damage to the applicants' property if the branch were to fall. The court considered the statutory framework and the expert evidence presented, and concluded that the proposed orders were appropriate and proportionate to the identified risks. The court ordered the respondents to prune the overhanging branch and implement a maintenance strategy, with specific requirements for the qualifications of the arborists and compliance with safety standards. The court also directed that the cost of the initial pruning work be shared equally between the parties.

The orders of the court included specific directions for the pruning of the Fig tree branch, the development and implementation of a maintenance strategy, and the qualifications and standards for the arborists involved. The court mandated that the respondents contract an appropriately qualified arborist to prune the branch and that the council develop a level 2 inspection strategy for the tree. The court further stipulated that all tree works must comply with safety guidelines and that the cost of the initial pruning be shared equally between the parties. The applicants were also required to provide access for the completion of the pruning upon receiving notice from the respondents.

Orders

Orders of the court

The Orders of the Court are:

(1) Within 60 days of these orders, the respondents shall contract an arborist, with all appropriate insurances, to reduction prune one branch of the Fig, which extends over the applicants’ roof in a south – westerly direction, back to an appropriate junction within the canopy, such that the pruning complies with AS4573:2007 (Pruning of Amenity Trees).

(2) Council shall develop a level 2 inspection strategy (based on ISA Tree Risk Assessment Qualification format) and a pruning strategy for the Fig tree (particularly in regard to branches overhanging the adjacent nature strip), and implement it for a period of five year from the date of these orders. This strategy shall entail inspections completed annually, plus after major storms, and they shall be undertaken at Council’s expense. Any tree pruning recommended from these inspections shall be subject to standard Council application requirements, and fees, and any such works are to be completed at the applicants’ and or respondents’ expense.

(3) All pruning shall comply with AS4573:2007 (Pruning of Amenity trees).

(4) All pruning and inspections shall be completed by arborists with a minimum Arboriculture qualification of AQF level 3.

(5) All tree works shall comply with the Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) The cost burden for the pruning in Order 1 shall be shared equally between the parties. Upon completion of this work, the respondent shall supply the applicant with a copy of the paid invoice, and the applicant shall reimburse the respondent for 50% of this cost, within 21 days.

(7) The applicant shall provide access for completion of this pruning upon receipt of at least 48 hours written notice of the date and approximate starting time of the works.

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:	Callaghan v Beverley [2020] NSWLEC 1117
Hearing dates:	30 January 2020
Date of orders:	30 January 2020
Decision date:	30 January 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Orders of the Court are: (1) Within 60 days of these orders, the respondents shall contract an arborist, with all appropriate insurances, to reduction prune one branch of the Fig, which extends over the applicants’ roof in a south – westerly direction, back to an appropriate junction within the canopy, such that the pruning complies with AS4573:2007 (Pruning of Amenity Trees). (2) Council shall develop a level 2 inspection strategy (based on ISA Tree Risk Assessment Qualification format) and a pruning strategy for the Fig tree (particularly in regard to branches overhanging the adjacent nature strip), and implement it for a period of five year from the date of these orders. This strategy shall entail inspections completed annually, plus after major storms, and they shall be undertaken at Council’s expense. Any tree pruning recommended from these inspections shall be subject to standard Council application requirements, and fees, and any such works are to be completed at the applicants’ and or respondents’ expense. (3) All pruning shall comply with AS4573:2007 (Pruning of Amenity trees). (4) All pruning and inspections shall be completed by arborists with a minimum Arboriculture qualification of AQF level 3. (5) All tree works shall comply with the Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (6) The cost burden for the pruning in Order 1 shall be shared equally between the parties. Upon completion of this work, the respondent shall supply the applicant with a copy of the paid invoice, and the applicant shall reimburse the respondent for 50% of this cost, within 21 days. (7) The applicant shall provide access for completion of this pruning upon receipt of at least 48 hours written notice of the date and approximate starting time of the works.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branches – apprehension of injury
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705; [2001] NSWCA 305 McPherson v Lake [2017] NSWLEC 1081 Owners Corporation Strata Plan 56927 v Horner [2012] NSWLEC 1146 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4573:2007 (Pruning of Amenity Trees) Kiama Development Control Plan 2012 Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work’, 2016 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017
Category:	Principal judgment
Parties:	Bernard Callaghan (Applicant) Robyn Beverley (First Respondent) Kiama Municipal Council (Second Respondent)
Representation:	Counsel: B Callaghan (Litigant in Person) (Applicant) R Beverley (Litigant…