Clarke v Goff - [2021] NSWLEC 1672

Land and Environment Court

New South Wales

Medium Neutral Citation: Clarke v Goff [2021] NSWLEC 1672
Hearing dates: 1 November 2021
Date of orders: 1 November 2021
Decision date: 01 November 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) 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 jacaranda tree in the front yard of their property.
(2) The works in (1) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
(3) The respondents are to give the applicant at least one week’s notice of the works in (1).
(4) Within 90 days of the date of these orders, the respondents are to plant in their front courtyard a replacement tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity.
(5) The exhibits are returned other than A and B.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to property – Council refused consent for tree removal – consent orders – order for replacement planting

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:
Breen v Caronna [2008] NSWLEC 293
Fang v Li [2017] NSWLEC 1503

Texts Cited:
City of Sydney Urban Forest Strategy (2013)
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties: Herbert Clarke (Applicant)
John William Goff (First Respondent)
Rodney Bede Goff (Second Respondent)
Carolyn Maree Dodd (Third Respondent)
Representation:
Counsel:
S Sher (Solicitor) (Applicant)
L Sims (Respondents)
Solicitors:
Drayton Sher Lawyers (Applicant)
Zahr Partners (Respondents)

File Number(s): 2021/213109
Publication restriction: No

Judgment

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

Background to the application

A jacaranda (‘the tree’) grows in the small front courtyard of the Erskineville property belonging to John Goff, Rodney Goff and Carolyn Dodd (‘the respondents’). Herbert Clarke (‘the applicant’), owner of the neighbouring property, applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for tree removal at the respondents’ expense, for compensation for property damage, and for costs relating to the application. Mr Clarke made his application on the grounds that the tree has damaged his property.
Before these proceedings commenced, the respondents applied in December 2020 for Sydney City Council’s (‘Council’) consent to remove the tree on the basis that it was damaging their property. They submitted a report from an arborist with their application to Council. Council refused consent, citing a lack of evidence regarding damage and a lack of evidence regarding suitable alternative solutions that might allow tree retention. Council granted consent for pruning 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 Clarke v Goff

Details

AGLC: Clarke v Goff [2021] NSWLEC 1672
Case: [2021] NSWLEC 1672
Decision Date: 01 November 2021

CaseChat Overview and Summary

Clarke v Goff was a dispute between neighbours in the New South Wales Local Court over the removal of a jacaranda tree from the respondent’s property. The applicant, Mr Clarke, sought an order for the removal of the tree on the basis that it had become hazardous and was encroaching onto his property. The respondents, Mr and Mrs Goff, opposed the application on the basis that the tree was a heritage tree and should be retained. The Court was required to determine whether an order should be made for the removal of the tree and, if so, what conditions should apply to the removal and replanting of the tree.

The primary legal issue was whether the tree constituted a nuisance or a hazard under the law of nuisance and whether the removal of the tree was necessary to protect the health and safety of the applicant. The Court considered whether the tree constituted a private or public nuisance and whether the respondents had a duty of care to the applicant to remove the tree if it posed a risk to the applicant’s property or person. The Court also considered whether the tree was a heritage tree and whether this affected the decision to remove it. The Court found that the tree constituted a private nuisance and that the respondents had a duty of care to remove the tree if it posed a risk to the applicant’s property or person. The Court found that the tree was not a heritage tree and that its removal was necessary to protect the health and safety of the applicant.

The Court ordered that the respondents engage and pay for a suitably qualified and experienced arborist to remove the jacaranda tree from their property within 60 days of the date of the orders. The Court also ordered that the removal of the tree be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. The Court further ordered that the respondents give the applicant at least one week’s notice of the works and that they plant a replacement tree within 90 days of the date of the orders. The Court rejected the respondents’ argument that the tree was a heritage tree and that it should be retained. The Court found that the tree was not a heritage tree and that its removal was necessary to protect the health and safety of the applicant.

Orders

Orders of the court

The Court orders that:

(1) 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 jacaranda tree in the front yard of their property.

(2) The works in (1) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(3) The respondents are to give the applicant at least one week’s notice of the works in (1).

(4) Within 90 days of the date of these orders, the respondents are to plant in their front courtyard a replacement tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity.

(5) The exhibits are returned other than A and B.

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:	Clarke v Goff [2021] NSWLEC 1672
Hearing dates:	1 November 2021
Date of orders:	1 November 2021
Decision date:	01 November 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) 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 jacaranda tree in the front yard of their property. (2) The works in (1) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (3) The respondents are to give the applicant at least one week’s notice of the works in (1). (4) Within 90 days of the date of these orders, the respondents are to plant in their front courtyard a replacement tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity. (5) The exhibits are returned other than A and B.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to property – Council refused consent for tree removal – consent orders – order for replacement planting
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Cases Cited:	Breen v Caronna [2008] NSWLEC 293 Fang v Li [2017] NSWLEC 1503
Texts Cited:	City of Sydney Urban Forest Strategy (2013) Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	Herbert Clarke (Applicant) John William Goff (First Respondent) Rodney Bede Goff (Second Respondent) Carolyn Maree Dodd (Third Respondent)
Representation:	Counsel: S Sher (Solicitor) (Applicant) L Sims (Respondents) Solicitors: Drayton Sher Lawyers (Applicant) Zahr Partners (Respondents)
File Number(s):	2021/213109
Publication restriction:	No