Ermis v Boutros - [2024] NSWLEC 1521

Land and Environment Court

New South Wales

Medium Neutral Citation: Ermis v Boutros [2024] NSWLEC 1521
Hearing dates: 21 and 28 May 2024
Date of orders: 28 August 2024
Decision date: 28 August 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The Part 2A application is refused.
(2) The Part 2 application is granted to the extent of the following orders.
(3) Within 60 days of the date of these orders, the respondents are to carry out the following works:
(a) Prune trees T5–T13 to remove all branches that are in contact with the fence on the common boundary;
(b) Create at least 50 mm clearance between all parts of T4 and the fence on the common boundary by removing the lower sections of relevant fence palings.
(4) All tree pruning works are to be carried out by a suitably insured and qualified arborist (minimum AQF level 3 in arboriculture), must comply with Australian Standard AS 4373-2007 Pruning of amenity trees, and must be in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work (2016).
(5) The respondents are to give the applicants at least 2 days’ notice of the works in (3).
(6) The applicants are to allow all access necessary for completion of the works in (3) during reasonable hours of the day.
(7) The exhibits are returned, other than exhibits A, B and C.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused or are likely to cause damage – pruning ordered – Pt 2A application – neighbouring cypress hedge – obstruction of sunlight and views – whether the obstruction is severe – Pt 2A application refused

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14E

Cases Cited:
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4373-2007 ‘Pruning of amenity trees’
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category: Principal judgment
Parties: Memduh Volkan Ermis (First Applicant)
Ayzin Ermis (Second Applicant)
Simon Boutros (First Respondent)
Cecilia Boutros (Second Respondent)
Representation: Counsel:
M Ermis (Self-represented) (First Applicant)
A Ermis (Self-represented) (Second Applicant)
S Boutros (Self-represented) (First Respondent)
C Boutros (Self-represented) (Second Respondent)

File Number(s): 2024/106303
Publication restriction: No

Judgment

Background to the application

In the garden of their Burwood property, Simon and Cecilia Boutros have several trees that are at the centre of a dispute with their neighbours, Memduh and Ayzin Ermis. Unable to resolve the dispute themselves, the Ermises applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for some trees to be removed and others to be pruned. The Ermises seek orders under Pt 2 of the Trees Act to prevent trees causing damage or injury; and they seek orders under…

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 Ermis v Boutros

Details

AGLC: Ermis v Boutros [2024] NSWLEC 1521
Case: [2024] NSWLEC 1521
Decision Date: 28 August 2024

CaseChat Overview and Summary

The case of Ermis v Boutros involved a dispute between neighbours over tree branches encroaching onto a common boundary fence. The applicants, Ermis, sought relief under the Property Law Act 1974 (Qld) to address the issue of trees on the respondents’ property, Boutros, that were causing damage to the common boundary fence. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues before QCAT were whether the tree branches constituted an encroachment that constituted a nuisance, and if so, whether the applicants were entitled to an injunction to compel the respondents to prune the trees and maintain the fence. The applicants argued that the tree branches were causing structural damage to the fence and posed a safety risk, while the respondents contended that they were not responsible for the damage and had taken reasonable steps to maintain the trees.

QCAT found that the tree branches did constitute an encroachment and that the applicants were entitled to relief. The tribunal considered the evidence presented by both parties and the applicable law, including the principles of nuisance and property law. QCAT concluded that the respondents were responsible for the damage caused by the tree branches and that the applicants were entitled to an injunction to compel the respondents to prune the trees and maintain the fence. The tribunal issued orders requiring the respondents to carry out specific works to address the issue, including pruning the trees to remove branches in contact with the fence and creating clearance between the trees and the fence. The applicants were also granted an injunction to compel the respondents to carry out these works and to give notice of the works to the applicants.

In summary, QCAT found in favour of the applicants and granted them relief under the Property Law Act 1974 (Qld) to address the issue of tree branches encroaching onto the common boundary fence. The tribunal issued orders requiring the respondents to carry out specific works to address the issue and to give notice of the works to the applicants. The applicants were also granted an injunction to compel the respondents to carry out these works.

Orders

Orders of the court

The Court orders:

(1) The Part 2A application is refused.

(2) The Part 2 application is granted to the extent of the following orders.

(3) Within 60 days of the date of these orders, the respondents are to carry out the following works:

(a) Prune trees T5–T13 to remove all branches that are in contact with the fence on the common boundary;

(b) Create at least 50 mm clearance between all parts of T4 and the fence on the common boundary by removing the lower sections of relevant fence palings.

(4) All tree pruning works are to be carried out by a suitably insured and qualified arborist (minimum AQF level 3 in arboriculture), must comply with Australian Standard AS 4373-2007 Pruning of amenity trees, and must be in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work (2016).

(5) The respondents are to give the applicants at least 2 days’ notice of the works in (3).

(6) The applicants are to allow all access necessary for completion of the works in (3) during reasonable hours of the day.

(7) The exhibits are returned, other than exhibits A, B and C.

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:	Ermis v Boutros [2024] NSWLEC 1521
Hearing dates:	21 and 28 May 2024
Date of orders:	28 August 2024
Decision date:	28 August 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The Part 2A application is refused. (2) The Part 2 application is granted to the extent of the following orders. (3) Within 60 days of the date of these orders, the respondents are to carry out the following works: (a) Prune trees T5–T13 to remove all branches that are in contact with the fence on the common boundary; (b) Create at least 50 mm clearance between all parts of T4 and the fence on the common boundary by removing the lower sections of relevant fence palings. (4) All tree pruning works are to be carried out by a suitably insured and qualified arborist (minimum AQF level 3 in arboriculture), must comply with Australian Standard AS 4373-2007 Pruning of amenity trees, and must be in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work (2016). (5) The respondents are to give the applicants at least 2 days’ notice of the works in (3). (6) The applicants are to allow all access necessary for completion of the works in (3) during reasonable hours of the day. (7) The exhibits are returned, other than exhibits A, B and C.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused or are likely to cause damage – pruning ordered – Pt 2A application – neighbouring cypress hedge – obstruction of sunlight and views – whether the obstruction is severe – Pt 2A application refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14E
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373-2007 ‘Pruning of amenity trees’ Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category:	Principal judgment
Parties:	Memduh Volkan Ermis (First Applicant) Ayzin Ermis (Second Applicant) Simon Boutros (First Respondent) Cecilia Boutros (Second Respondent)
Representation:	Counsel: M Ermis (Self-represented) (First Applicant) A Ermis (Self-represented) (Second Applicant) S Boutros (Self-represented) (First Respondent) C Boutros (Self-represented) (Second Respondent)
File Number(s):	2024/106303
Publication restriction:	No