Dara v Mayadunne - [2019] NSWLEC 1217

Land and Environment Court

New South Wales

Medium Neutral Citation: Dara v Mayadunne [2019] NSWLEC 1217
Hearing dates: 4 April 2019
Date of orders: 29 May 2019
Decision date: 29 May 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1)   The canopies of the two Eucalyptus saligna (Sydney Blue Gum) trees overhanging the applicant’s property, including the nature strip in front of his property, shall be pruned annually to remove all deadwood above 20mm diameter at the branch collar. This shall initially be completed within eight weeks of the date of these orders, and during July or August of each subsequent year. The Monstera deliciosa, which is climbing up the lower trunk of Tree 1, shall also be removed in conjunction with the initial pruning. The work is to comply with AS4373-2007 Pruning of amenity trees.
(2)   The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in Order 1. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders 1 and 3. Within 14 days of receipt of a copy of a paid invoice for these works, Mr Dara is to reimburse Mr and Mrs Mayadunne 50% of the total of the invoice.
(3)   All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to property and of injury – tree removal sought
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Hinde v Anderson & anor [2009] NSWLEC 1148
Yang v Scerri [2007] NSWLEC 592
Texts Cited: AS4373-2007 Pruning of amenity trees
Hornsby Development Control Plan 2013
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category: Principal judgment
Parties: Venkata Kiran Kumar Dara (Applicant)
Upali Mayadunne (First Respondent)
Sujatha Mayadunne (Second Respondent)
Representation:
Solicitors:
A Pickup, Local Government Legal, Hornsby Shire Council (Interested party)
Other:
V Dara, litigant in person (Applicant)
U and S Mayadunne, litigants in person (Respondents)

File Number(s): 2018/383564
Publication restriction: No

Judgment

COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Dara of Wahroonga, involving apprehension of damage and injury relating to two Eucalyptus saligna (Sydney Blue Gums) located in the adjacent property to the south.

Introduction

Mr Dara has owned his property for 14 years. He subdivided his land, and built a…

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 Dara v Mayadunne

Details

AGLC: Dara v Mayadunne [2019] NSWLEC 1217
Case: [2019] NSWLEC 1217
Decision Date: 29 May 2019

CaseChat Overview and Summary

The case of Dara v Mayadunne involved a dispute between neighbours over the maintenance of trees overhanging the applicant’s property. The applicant sought relief under the Trees (Protection) Act 1995, arguing that the trees on the respondent's property, particularly two Eucalyptus saligna trees, were causing issues by shedding deadwood onto his property and nature strip. The matter was heard in the Local Court of New South Wales.

The legal issues that arose for determination included whether the trees constituted a nuisance under the Act and whether the court could order the pruning of the trees. Additionally, the court needed to decide on the allocation of costs for the pruning work and the qualifications of the arborists required to perform such work.

The court found that the trees did indeed cause a nuisance, as they were shedding deadwood onto the applicant’s property, thereby constituting a hazard and an inconvenience. The court held that the trees should be pruned annually to remove all deadwood above 20mm diameter at the branch collar, in accordance with industry standards. The court also ruled that the costs for this work should be shared equally between the parties, and that the pruning should be carried out by arborists who are qualified to AQF level 3 and have appropriate insurance. Furthermore, access for the arborists must be provided by the applicant, subject to reasonable notice and working hours.

The court issued orders detailing the specific requirements for the pruning of the trees, the allocation of costs between the parties, and the qualifications and insurance requirements for the arborists. The court mandated that the initial pruning and removal of the Monstera deliciosa be completed within eight weeks of the orders, and subsequent prunings to be carried out during July or August each year. Additionally, the court specified that the parties could procure quotes for the work and that the least expensive qualified arborist should be selected if agreement could not be reached.

Orders

Orders of the court

The Court orders:

(1) The canopies of the two Eucalyptus saligna (Sydney Blue Gum) trees overhanging the applicant’s property, including the nature strip in front of his property, shall be pruned annually to remove all deadwood above 20mm diameter at the branch collar. This shall initially be completed within eight weeks of the date of these orders, and during July or August of each subsequent year. The Monstera deliciosa, which is climbing up the lower trunk of Tree 1, shall also be removed in conjunction with the initial pruning. The work is to comply with AS4373-2007 Pruning of amenity trees.

(2) The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in Order 1. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders 1 and 3. Within 14 days of receipt of a copy of a paid invoice for these works, Mr Dara is to reimburse Mr and Mrs Mayadunne 50% of the total of the invoice.

(3) All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.

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:	Dara v Mayadunne [2019] NSWLEC 1217
Hearing dates:	4 April 2019
Date of orders:	29 May 2019
Decision date:	29 May 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The canopies of the two Eucalyptus saligna (Sydney Blue Gum) trees overhanging the applicant’s property, including the nature strip in front of his property, shall be pruned annually to remove all deadwood above 20mm diameter at the branch collar. This shall initially be completed within eight weeks of the date of these orders, and during July or August of each subsequent year. The Monstera deliciosa, which is climbing up the lower trunk of Tree 1, shall also be removed in conjunction with the initial pruning. The work is to comply with AS4373-2007 Pruning of amenity trees. (2) The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in Order 1. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders 1 and 3. Within 14 days of receipt of a copy of a paid invoice for these works, Mr Dara is to reimburse Mr and Mrs Mayadunne 50% of the total of the invoice. (3) All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to property and of injury – tree removal sought
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hinde v Anderson & anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373-2007 Pruning of amenity trees Hornsby Development Control Plan 2013 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category:	Principal judgment
Parties:	Venkata Kiran Kumar Dara (Applicant) Upali Mayadunne (First Respondent) Sujatha Mayadunne (Second Respondent)
Representation:	Solicitors: A Pickup, Local Government Legal, Hornsby Shire Council (Interested party) Other: V Dara, litigant in person (Applicant) U and S Mayadunne, litigants in person (Respondents)
File Number(s):	2018/383564
Publication restriction:	No