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: 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 152Texts 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…
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- AGLC
- Ghazal v Vella (No. 2) [2011] NSWLEC 1340
- Case
- [2011] NSWLEC 1340
- Decision Date
CaseChat Overview and Summary
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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