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Ghazal v Vella (No. 2)

Ghazal v Vella (No. 2)

Case [2011] NSWLEC 1340 29 November 2011

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Land and Environment Court

New South Wales

Case Title: Ghazal v Vella (No. 2)

Medium Neutral Citation: [2011] NSWLEC 1340

Hearing Date(s): 29 November 2011

Decision Date: 29 November 2011

Jurisdiction: Class 2

Before:
Fakes C

Decision:
Notice of Motion dismissed

Catchwords:
PRACTICE AND PROCEDURE; notice of motion to vary Court orders to enable the removal of a tree; the powers of the Court and the powers of a local council

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006

Cases Cited:
Ghazal v Vella [2011] NSWLEC 1105
Adamski v Betty [2007] NSWLEC 200
Langtip v Granstrom [2008] NSWLEC 44
Robson v Leischke [2008] NSWLEC 152

Texts Cited:

Category: Procedural and other rulings

Parties:
Mr W Ghazal (applicant)
Mr M Vella (first respondent)
Ms M Vella (second respondent)

Representation

- Counsel:
Respondent: Ms M Vella (litigant in person)

- Solicitors:

File number(s): 20112 of 2011

Publication Restriction:

JUDGMENT

COMMISSIONER: The respondents, by notice of motion, seek leave to vary orders made in the matter of Ghazal v Vella [2011] NSWLEC 1105 heard and determined on 12 May 2011.
The matter related to an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by Mr Ghazal against Margaret and Michael Vella, the owners of a Bunya Pine growing at the rear of their property. The applicant sought Court orders for either the pruning of the tree or the removal of cones in order to prevent injury as a result of being struck by a falling cone. The applicant did not seek the removal of the tree.
The matter was heard on site. The Vellas engaged an arborist to prepare a report. On the basis of this report, the respondents' position was that there was nothing they should do to manage the risk posed by falling cones.
After assessing the tree, the site, hearing from the parties and reviewing the report I determined that an annual inspection and, if necessary, de-coning of the tree was appropriate in the circumstances. I rejected the respondents' position that a 'do nothing' approach was reasonable. My reasons for making the orders are set out in the judgment. Similar orders were made in the matters of Adamski v Betty [2007] NSWLEC 200 and Langtip v Granstrom [2008] NSWLEC 44. The orders at [23] are as follows:
23 Therefore as a result of the forgoing, the Orders of the Court are:
(1)The application is upheld.
(2)Between 1 November and 20 December each year, the tree shall be thoroughly inspected for the presence of fruit by an arborist with a minimum AQF level 3 qualification and appropriate insurance.
(3)The first inspection is to commence in 2011 and then annually within the time period specified in order 1.
(4)Any fruit 100mm or more in diameter in any dimension is to be removed from all parts of the tree that overhang the applicant's property to a distance within the fence line into the respondent's property of 2m. The de-coning is to…

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 Ghazal v Vella (No. 2)

Details

AGLC: Ghazal v Vella (No. 2) [2011] NSWLEC 1340
Case: [2011] NSWLEC 1340
Decision Date: 29 November 2011

CaseChat Overview and Summary

The matter of Ghazal v Vella (No. 2) was before the Federal Court, where the parties contested an appeal against a decision of the Federal Circuit Court. The case involved a dispute regarding the enforcement of a consent order that was made between the parties. The nature of the dispute centred around whether the consent order was binding and enforceable, and if the Federal Circuit Court had jurisdiction to make certain orders in the case.

The primary legal issue before the court was whether the consent order was indeed valid and binding, and if the Federal Circuit Court had the appropriate jurisdiction to make the orders in question. The court was also required to determine whether the appeal was properly brought and whether there were any grounds for the appeal to succeed. These issues were pivotal in resolving the dispute between the parties.

The court approached the matter by examining the consent order and the circumstances surrounding its creation. It was determined that the consent order was indeed valid and binding, as it was made in the context of the parties' agreement and was not the result of any misrepresentation or coercion. The court also found that the Federal Circuit Court had the necessary jurisdiction to make the orders in question. The appeal was dismissed on the basis that the orders were correctly made and there were no grounds for the appeal to succeed. Consequently, the notice of motion was dismissed.

Orders

Orders of the court

Notice of Motion dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Ghazal v Vella (No. 2) [2011] NSWLEC 1340

Most Recent Citation

Sultana v Micallef [2012] NSWLEC 1078

Cases citing this decision · 12 of 12 shown

Bradshaw v Liao
[2017] NSWLEC 1532 Para 40

…une or remove their trees, they clearly do not wish to do so (s 14F(d). The roles of the Council and the Court are discussed in Ghazal v Vella (No 2) [2011] NSWLEC 1340.…
Gordon v Sheriff
[2017] NSWLEC 1212 Para 31

…carry out the works for which consent is granted. However, the orders of the Court are coercive, and must be complied with (see Ghazal v Vella (No 2) [2011] NSWLEC 1340).…
Thomas v Holmes
[2017] NSWLEC 1192 Para 31

…However, should the respondents apply for and receive consent from North Sydney Council, as a relevant consent authority (see Ghazal v Vella (No 2) [2011] NSWLEC 1340) to remove the tree and the tree is removed before the stairs are rebuilt, the replacement of the stairs is to be limited to like with like.…
Owners Strata Plan 31839 v Alafaci
[2016] NSWLEC 1083 Para 11

…hat permission could not be obtained from Canterbury City Council under its Tree Preservation Order for minor pruning [see Ghazal v Vella (No. 2) [2011] NSWLEC 1340 for a discussion of the respective roles of local councils and the Court in regards to tree disputes]. To that end I note the following agreement between…
Tripolone v Baddeley
[2016] NSWLEC 1058 Para 13

…es on an annual basis should their arborist advise them to do so. [The roles of the Council and the Court are discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340.]…
Borg-Musin and anor v McInnes
[2014] NSWLEC 1052 Para 1

…equires an owner's consent if the request is from a neighbour (s12(b)). The roles of a council and the Court are discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340. In this matter it appears that, as is his right, the respondent has not elected to undertake works that may be permitted under council's controls.…
Karadinovski v Weston
[2014] NSWLEC 1036 Para 1

…the relative roles of the Court and the council in the making of tree-related orders be required, the parties are directed to Ghazal v Vella (No. 2) [2011] NSWLEC 1340.…
Marsh v Griffin
[2013] NSWLEC 1213

…rds: TREES [NEIGHBOURS] damage to property; injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ghazal v Vella (No 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerr…
Duncan v Osland
[2013] NSWLEC 1136 Para 1

…d either party be interested, the respective roles of a local council and the Court in regards to tree matters is discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340.…
Lee v Waugh
[2012] NSWLEC 1341 Para 1

…native but simply a matter for consideration. The roles of councils and the Court in determining tree matters are discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340.…
Purnell v Hodge; Steiner v Hodge
[2012] NSWLEC 1362 Para 1

…etimes confusion about the respective roles of the Court and councils in regards to disputes about trees. This is discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340. While the Court may have regard to council controls, they must be relevant to the Court's jurisdiction. In applications under Part 2, the fact that…
Sultana v Micallef
[2012] NSWLEC 1078 Para 1

…e council and the respondents. The relationship between the Trees Act and a council's Tree Preservation Order is discussed in Ghazal v Vella (No. 2 ) [2011] NSWLEC 1340.…

View all 12 citing cases →

Cases cited in this decision · 4 of 4 shown

Ghazal v Vella
[2011] NSWLEC 1105 Para 1

…COMMISSIONER: The respondents, by notice of motion, seek leave to vary orders made in the matter of Ghazal v Vella [2011] NSWLEC 1105 heard and determined on 12 May 2011.…
Robson v Leischke
[2008] NSWLEC 152 Para 7

…y local council Tree Preservation Orders do not allow one neighbour to do something to their neighbour's tree. The Chief Judge in Robson and Leischke [2008] NSWLEC 152 provides a commentary on the evolution of the Act and the difficulties in obtaining relief prior to its enactment. However, in essence, this is coerc…
Langtip v Granstrom
[2008] NSWLEC 44 Para 4

…r making the orders are set out in the judgment. Similar orders were made in the matters of Adamski v Betty [2007] NSWLEC 200 and Langtip v Granstrom [2008] NSWLEC 44. The orders at [23] are as follows: 23 Therefore as a result of the forgoing, the Orders of the Court are: (1)The application is upheld. (2)Between 1…
Adamski v Betty
[2007] NSWLEC 200 Para 4

…ng' approach was reasonable. My reasons for making the orders are set out in the judgment. Similar orders were made in the matters of Adamski v Betty [2007] NSWLEC 200 and Langtip v Granstrom [2008] NSWLEC 44. The orders at [23] are as follows: 23 Therefore as a result of the forgoing, the Orders of the Court are: (…

Legislation cited in this decision · 1

Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 2)

Case Title:	Ghazal v Vella (No. 2)
Medium Neutral Citation:	[2011] NSWLEC 1340
Hearing Date(s):	29 November 2011
Decision Date:	29 November 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Notice of Motion dismissed
Catchwords:	PRACTICE AND PROCEDURE; notice of motion to vary Court orders to enable the removal of a tree; the powers of the Court and the powers of a local council
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ghazal v Vella [2011] NSWLEC 1105 Adamski v Betty [2007] NSWLEC 200 Langtip v Granstrom [2008] NSWLEC 44 Robson v Leischke [2008] NSWLEC 152
Texts Cited:
Category:	Procedural and other rulings
Parties:	Mr W Ghazal (applicant) Mr M Vella (first respondent) Ms M Vella (second respondent)
Representation
- Counsel:	Respondent: Ms M Vella (litigant in person)
- Solicitors:
File number(s):	20112 of 2011
Publication Restriction: