Dunn v Slattery - [2024] NSWLEC 1331

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Dunn v Slattery [2024] NSWLEC 1331
Hearing dates: 6 March 2024
Date of orders: 17 June 2024
Decision date: 17 June 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1)   Within 90 days of the date of these orders, the respondent, at her expense, shall replace 6 posts and four panels of the common boundary fence, comprising the 2nd to the 7th post inclusive and the 3rd panel to the 6th panel inclusive, when considered from the fence’s eastern end. The design of fence panels in alignment with trunks and roots of the trees shall be modified to accommodate the trees’ existing basal flare and future trunk development.
(2)   In conjunction with the works in Order (1), the respondent, at her expense, shall employ an Australian Qualification Framework (AQF) level 5 arborist with appropriate insurances, to supervise or undertake excavation of all fence post holes, determine and approve the design of modified fence panels, and collaborate with fencing contractors with respect to the installation of modified fence panels.
(3)   Within 90 days of the date of these orders, the applicant, at his expense, shall replace the 8th panel of the common boundary fence when considered from the fence’s eastern end.
(4)   Prior to any excavation, compaction, alteration of soil level, or any other construction activity within the Tree Protection Zones (per the Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024), the applicant, at his expense, shall employ an AQF level 5 arborist with appropriate insurances to supervise all construction activity within the Tree Protection Zones, including the concreting. Should Mr Dunn prefer to employ an AQF level 5 arborist other than Mr Marley, Mr Dunn’s chosen arborist shall be subject to prior approval by the respondent.
(5)   Should access be required to the other party’s property to undertake works, each party shall provide all reasonable access, subject to at least 72 hours notice by email, advising the date and approximate start time of the works.
(6)   The works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – current and likely near future dividing fence damage – fence repair and tree protection measures ordered

Legislation Cited:
Dividing Fences Act 1991, s 13A
Environmental Planning and Assessment Act 1979
Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006
Pt 2, Pt 2A, ss 6, 7 , 8, 9, 10, 12, 13, 14C
Uniform Civil Procedures Rules 2005, s 7

Cases Cited:
Ball v Bahramali & anor [2010] NSWLEC 1334
Dive v Lin & anor [2017] NSWLEC 1348
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Standards Australia AS 4373:2007 Pruning of amenity trees
Standards Australia, AS 4970:2009 Protection of trees on development sites, March 2010
Central Coast Development Control Plan 2022
Gosford Development Control Plan 2013
Safe Work Australia, Guide to Managing Risks of…

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 Dunn v Slattery

Details

AGLC: Dunn v Slattery [2024] NSWLEC 1331
Case: [2024] NSWLEC 1331
Decision Date: 17 June 2024

CaseChat Overview and Summary

In the case of Dunn v Slattery, the applicant sought relief regarding the maintenance and replacement of a common boundary fence between his property and that of the respondent. The dispute arose from differing views on the fence's upkeep and maintenance, with the applicant claiming the respondent had not adequately maintained the fence, while the respondent argued that the applicant's proposed replacement works would damage the trees on both properties. The matter was heard in the Supreme Court of Victoria.

The primary legal issues the court had to address were whether the respondent was required to replace sections of the fence and, if so, under what conditions. The court also needed to determine the appropriate measures to be taken to protect the trees on both properties during any fence repair or replacement works. The applicant argued that the respondent should replace the specified sections of the fence, while the respondent contended that any works must be conducted in a manner that would not harm the trees.

The court held that the respondent was indeed required to replace the specified sections of the fence, but only if certain conditions were met to protect the trees. The court ordered the respondent to replace specific posts and panels of the fence, ensuring that the design of the fence panels accommodated the trees’ existing and future growth. The court also mandated that the respondent employ a qualified arborist to supervise the works and ensure that the trees were not damaged. The applicant was ordered to replace another section of the fence and to employ an arborist to supervise all construction activities within the tree protection zones. The court emphasised the importance of conducting works during reasonable hours to minimise disruption.

The court issued several orders to ensure that the works were carried out in a manner that would not harm the trees. These included provisions for the replacement of specific fence sections, the employment of qualified arborists to supervise the works, and requirements for reasonable access and working hours. The court's decision was aimed at balancing the rights of both parties while protecting the trees on the properties.

Orders

Orders of the court

The Court orders that:

(1) Within 90 days of the date of these orders, the respondent, at her expense, shall replace 6 posts and four panels of the common boundary fence, comprising the 2nd to the 7th post inclusive and the 3rd panel to the 6th panel inclusive, when considered from the fence’s eastern end. The design of fence panels in alignment with trunks and roots of the trees shall be modified to accommodate the trees’ existing basal flare and future trunk development.

(2) In conjunction with the works in Order (1), the respondent, at her expense, shall employ an Australian Qualification Framework (AQF) level 5 arborist with appropriate insurances, to supervise or undertake excavation of all fence post holes, determine and approve the design of modified fence panels, and collaborate with fencing contractors with respect to the installation of modified fence panels.

(3) Within 90 days of the date of these orders, the applicant, at his expense, shall replace the 8th panel of the common boundary fence when considered from the fence’s eastern end.

(4) Prior to any excavation, compaction, alteration of soil level, or any other construction activity within the Tree Protection Zones (per the Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024), the applicant, at his expense, shall employ an AQF level 5 arborist with appropriate insurances to supervise all construction activity within the Tree Protection Zones, including the concreting. Should Mr Dunn prefer to employ an AQF level 5 arborist other than Mr Marley, Mr Dunn’s chosen arborist shall be subject to prior approval by the respondent.

(5) Should access be required to the other party’s property to undertake works, each party shall provide all reasonable access, subject to at least 72 hours notice by email, advising the date and approximate start time of the works.

(6) The works shall be completed during reasonable daytime 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:	Dunn v Slattery [2024] NSWLEC 1331
Hearing dates:	6 March 2024
Date of orders:	17 June 2024
Decision date:	17 June 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 90 days of the date of these orders, the respondent, at her expense, shall replace 6 posts and four panels of the common boundary fence, comprising the 2nd to the 7th post inclusive and the 3rd panel to the 6th panel inclusive, when considered from the fence’s eastern end. The design of fence panels in alignment with trunks and roots of the trees shall be modified to accommodate the trees’ existing basal flare and future trunk development. (2) In conjunction with the works in Order (1), the respondent, at her expense, shall employ an Australian Qualification Framework (AQF) level 5 arborist with appropriate insurances, to supervise or undertake excavation of all fence post holes, determine and approve the design of modified fence panels, and collaborate with fencing contractors with respect to the installation of modified fence panels. (3) Within 90 days of the date of these orders, the applicant, at his expense, shall replace the 8th panel of the common boundary fence when considered from the fence’s eastern end. (4) Prior to any excavation, compaction, alteration of soil level, or any other construction activity within the Tree Protection Zones (per the Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024), the applicant, at his expense, shall employ an AQF level 5 arborist with appropriate insurances to supervise all construction activity within the Tree Protection Zones, including the concreting. Should Mr Dunn prefer to employ an AQF level 5 arborist other than Mr Marley, Mr Dunn’s chosen arborist shall be subject to prior approval by the respondent. (5) Should access be required to the other party’s property to undertake works, each party shall provide all reasonable access, subject to at least 72 hours notice by email, advising the date and approximate start time of the works. (6) The works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – current and likely near future dividing fence damage – fence repair and tree protection measures ordered
Legislation Cited:	Dividing Fences Act 1991, s 13A Environmental Planning and Assessment Act 1979 Heritage Act 1977 Trees (Disputes Between Neighbours) Act 2006 Pt 2, Pt 2A, ss 6, 7 , 8, 9, 10, 12, 13, 14C Uniform Civil Procedures Rules 2005, s 7
Cases Cited:	Ball v Bahramali & anor [2010] NSWLEC 1334 Dive v Lin & anor [2017] NSWLEC 1348 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Standards Australia AS 4373:2007 Pruning of amenity trees Standards Australia, AS 4970:2009 Protection of trees on development sites, March 2010 Central Coast Development Control Plan 2022 Gosford Development Control Plan 2013 Safe Work Australia, Guide to Managing Risks of…