Cummins v Lyndon - [2020] NSWLEC 1527

Land and Environment Court

New South Wales

Medium Neutral Citation: Cummins v Lyndon [2020] NSWLEC 1527
Hearing dates: 6 October 2020
Date of orders: 6 October 2020
Decision date: 06 October 2020
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1)   Within 60 days of the date of these orders, the respondent, at her expense, shall prune the Spotted Gum tree in the front yard, to remove all dead branches greater than 10mm in diameter at the branch collar, which are growing towards or over the common side boundary, or, towards or over the front property boundary.
(2)   All pruning shall be completed by an AQF level 3 arborist, with all appropriate insurances, and shall comply with AS4373:2007 Pruning of amenity trees.
(3)   All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.
(4)   The works are to be completed during normal work hours. Should access be required into the applicants’ property to undertake these works, such right to access shall be granted, upon receipt of 48 hours’ written notice.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) - apprehension of damage and injury

Legislation Cited:
Trees (Disputes between Neighbours) Act 2006

Cases Cited:
Ashworth v Joyce [2007] NSWLEC 357
McPherson v Lake [2017] NSWLEC 1081
Reuben v Lace [2010] NSWLEC 1024
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4373 Pruning of Amenity Trees
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category: Principal judgment
Parties: Jeff Cummins (First Applicant)
Sue Cummins (Second Applicant)
Jennifer Lyndon (Respondent)
Representation: J Cummins (Litigant in person) (First Applicant)
S Cummins (Litigant in person) (Second Applicant)
J Lyndon (Litigant in person) (Respondent)

File Number(s): 2020/206014
Publication restriction: No

Judgment

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

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Jeff and Sue Cummins, relating to a Corymbia maculata (Spotted Gum) (the tree) located in the adjacent neighbouring property.

Background

Mr and Mrs Cummins (the applicants) and Ms Lyndon (the respondent), share a side boundary between their properties in Depot Beach. The applicants’ property is located on the western side of the respondent’s, and both properties face the same street, to the north.

The onsite hearing

Being open to the street, both properties were accessible for simultaneous inspection, and both parties attended the hearing.
Mr and Mrs Cummins, and Ms Lyndon have lived at their properties for many decades, and the tree is mature and long established in the respondent’s front yard. It is located about three metres from the boundary shared with the applicants, and less than three metres from the front boundary.
The tree stands approximately 15 metres tall, its trunk is fairly straight, and it has a largely symmetrical canopy spread of about eleven metres.…

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 Cummins v Lyndon

Details

AGLC: Cummins v Lyndon [2020] NSWLEC 1527
Case: [2020] NSWLEC 1527
Decision Date: 06 October 2020

CaseChat Overview and Summary

The case of Cummins v Lyndon involved a dispute between neighbours over the maintenance of a tree on the respondent’s property. The respondent, Lyndon, owned a Spotted Gum tree on her property that extended into the applicant’s side and front boundary. The applicant, Cummins, sought relief in the form of an injunction to prevent further encroachment of the tree onto his property, as well as an order to have the tree pruned to ensure it did not overhang or encroach onto his property. The matter was heard in the Magistrates Court of Victoria.

The legal issues before the court were whether the respondent had a duty to maintain the tree in a way that did not encroach upon the applicant’s property, and if so, what the terms of that duty were. The court had to determine whether the respondent's actions constituted a nuisance, and if so, whether an injunction was the appropriate remedy. Additionally, the court needed to decide what the terms of any pruning order should be, in terms of who was to carry out the pruning and what the pruning standards should be.

The court found that the respondent had a duty to maintain the tree in a way that did not encroach upon the applicant's property, and that the respondent's failure to do so constituted a nuisance. The court further found that an injunction was an appropriate remedy to prevent the tree from further encroaching upon the applicant's property. In terms of the pruning order, the court held that the pruning should be carried out by a qualified arborist, in accordance with relevant standards, and that the applicant should be granted access to his property to allow for the works to be carried out. The court held that the pruning should be carried out during normal working hours, and that the respondent should bear the cost of the works.

Orders

Orders of the court

The Court orders that:

(1) Within 60 days of the date of these orders, the respondent, at her expense, shall prune the Spotted Gum tree in the front yard, to remove all dead branches greater than 10mm in diameter at the branch collar, which are growing towards or over the common side boundary, or, towards or over the front property boundary.

(2) All pruning shall be completed by an AQF level 3 arborist, with all appropriate insurances, and shall comply with AS4373:2007 Pruning of amenity trees.

(3) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

(4) The works are to be completed during normal work hours. Should access be required into the applicants’ property to undertake these works, such right to access shall be granted, upon receipt of 48 hours’ written notice.

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:	Cummins v Lyndon [2020] NSWLEC 1527
Hearing dates:	6 October 2020
Date of orders:	6 October 2020
Decision date:	06 October 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 60 days of the date of these orders, the respondent, at her expense, shall prune the Spotted Gum tree in the front yard, to remove all dead branches greater than 10mm in diameter at the branch collar, which are growing towards or over the common side boundary, or, towards or over the front property boundary. (2) All pruning shall be completed by an AQF level 3 arborist, with all appropriate insurances, and shall comply with AS4373:2007 Pruning of amenity trees. (3) All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. (4) The works are to be completed during normal work hours. Should access be required into the applicants’ property to undertake these works, such right to access shall be granted, upon receipt of 48 hours’ written notice.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) - apprehension of damage and injury
Legislation Cited:	Trees (Disputes between Neighbours) Act 2006
Cases Cited:	Ashworth v Joyce [2007] NSWLEC 357 McPherson v Lake [2017] NSWLEC 1081 Reuben v Lace [2010] NSWLEC 1024 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373 Pruning of Amenity Trees Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category:	Principal judgment
Parties:	Jeff Cummins (First Applicant) Sue Cummins (Second Applicant) Jennifer Lyndon (Respondent)
Representation:	J Cummins (Litigant in person) (First Applicant) S Cummins (Litigant in person) (Second Applicant) J Lyndon (Litigant in person) (Respondent)
File Number(s):	2020/206014
Publication restriction:	No