Greenaway v Garcia - [2022] NSWLEC 1474

Land and Environment Court

New South Wales

Medium Neutral Citation: Greenaway v Garcia [2022] NSWLEC 1474
Hearing dates: 31 May 2022
Date of orders: 9 September 2022
Decision date: 09 September 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) Within 45 days of the date of these orders, the respondents, at their expense, shall remove the Jacaranda tree to near ground level, poison stump, and remove refuse.
(2) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the height of the hedge comprising two Lilly Pilly trees and one Black Bean tree which are growing loosely parallel to the common boundary, to a height level with a point four (4) metres higher than the base of the northern end of the common boundary fence.
(3) The respondents, at their expense, shall maintain this hedge, so that at no time in the future, after completion of the pruning in Order 2, does the height of the hedge exceed a height level with a point 4.5 metres higher than the base of the northern end of the common boundary fence.
(4) The pruning works shall be completed by AQF level 3 arborists, with all appropriate insurances, and in accordance with the Australian pruning standard (AS4373:2007 Pruning of amenity trees).
(5) The tree works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(6) Should access be required into the applicant’s property to undertake these works or to remove refuse, the applicant shall provide such access to the respondents, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents.
(7) The works are to be completed during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of views severe – balance between views and privacy – pruning and removal ordered

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Pt 2, ss 7, 8, 9, 10, 12, Pt 2A ss 14A, 14B, 14E, 14F

Cases Cited:
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Stevens v Russell [2016] NSWLEC 1233
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
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: John Greenaway (Applicant)
Ivan Garcia (First Respondent)
Dian Garcia (Second Respondent)
Representation: J Greenaway (Self-represented) (Applicant)
D Garcia (Self-represented) (Both Respondents)

File Number(s): 2022/74311
Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

John Greenaway, the applicant, has lived at his Barrack Heights property for many decades. He shares a boundary with the respondents, Ivan and Dian Garcia. Mr Greenaway’s rear boundary…

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 Greenaway v Garcia

Details

AGLC: Greenaway v Garcia [2022] NSWLEC 1474
Case: [2022] NSWLEC 1474
Decision Date: 09 September 2022

CaseChat Overview and Summary

Greenaway v Garcia is a case before the court concerning a dispute between neighbours regarding the maintenance and removal of trees and hedges on their properties, which encroach upon the applicant's property. The applicant, Greenaway, sought relief from the court for the removal of a Jacaranda tree and the pruning of a hedge that consist of two Lilly Pilly trees and one Black Bean tree, which are located on the respondents' property but extend over the common boundary. The respondents, Garcia, have been ordered to undertake these works within a specified timeframe.

The primary legal issues that the court had to address were whether the encroachment of the respondents' trees and hedge onto the applicant's property constituted a nuisance, and whether the applicant was entitled to an injunction requiring the removal or pruning of the trees and hedge. The court also had to consider the appropriate terms for any injunction, including the level of pruning and the qualifications of the arborists to be employed. Additionally, the court had to determine the conditions under which the respondents could access the applicant's property to complete the works.

The court found that the encroachment of the Jacaranda tree and the hedge onto the applicant's property constituted a nuisance. The court further found that the applicant was entitled to an injunction requiring the respondents to remove the Jacaranda tree to near ground level, poison the stump, and remove the refuse. The court also ordered the pruning of the hedge to a specific height and mandated that the respondents maintain this height in the future. The court specified that the pruning works must be conducted by arborists with appropriate qualifications and insurances, in accordance with relevant Australian standards and safety guidelines. The court also stipulated that the works must be completed during reasonable working hours, and that the applicant must provide access to the respondents or their arborists upon receipt of adequate notice.

The orders made by the court include the removal of the Jacaranda tree, the pruning of the hedge, and the maintenance of the hedge at a specified height. The court further ordered that the works must be carried out by qualified arborists, in compliance with Australian standards and safety guidelines. The court also specified that the works should be completed during reasonable working hours and that the applicant must provide access to the respondents or their arborists, subject to certain conditions.

Orders

Orders of the court

The Court orders that:

(1) Within 45 days of the date of these orders, the respondents, at their expense, shall remove the Jacaranda tree to near ground level, poison stump, and remove refuse.

(2) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the height of the hedge comprising two Lilly Pilly trees and one Black Bean tree which are growing loosely parallel to the common boundary, to a height level with a point four (4) metres higher than the base of the northern end of the common boundary fence.

(3) The respondents, at their expense, shall maintain this hedge, so that at no time in the future, after completion of the pruning in Order 2, does the height of the hedge exceed a height level with a point 4.5 metres higher than the base of the northern end of the common boundary fence.

(4) The pruning works shall be completed by AQF level 3 arborists, with all appropriate insurances, and in accordance with the Australian pruning standard (AS4373:2007 Pruning of amenity trees).

(5) The tree works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) Should access be required into the applicant’s property to undertake these works or to remove refuse, the applicant shall provide such access to the respondents, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents.

(7) The works are to be completed 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:	Greenaway v Garcia [2022] NSWLEC 1474
Hearing dates:	31 May 2022
Date of orders:	9 September 2022
Decision date:	09 September 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 45 days of the date of these orders, the respondents, at their expense, shall remove the Jacaranda tree to near ground level, poison stump, and remove refuse. (2) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the height of the hedge comprising two Lilly Pilly trees and one Black Bean tree which are growing loosely parallel to the common boundary, to a height level with a point four (4) metres higher than the base of the northern end of the common boundary fence. (3) The respondents, at their expense, shall maintain this hedge, so that at no time in the future, after completion of the pruning in Order 2, does the height of the hedge exceed a height level with a point 4.5 metres higher than the base of the northern end of the common boundary fence. (4) The pruning works shall be completed by AQF level 3 arborists, with all appropriate insurances, and in accordance with the Australian pruning standard (AS4373:2007 Pruning of amenity trees). (5) The tree works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (6) Should access be required into the applicant’s property to undertake these works or to remove refuse, the applicant shall provide such access to the respondents, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents. (7) The works are to be completed during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of views severe – balance between views and privacy – pruning and removal ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Pt 2, ss 7, 8, 9, 10, 12, Pt 2A ss 14A, 14B, 14E, 14F
Cases Cited:	Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Stevens v Russell [2016] NSWLEC 1233 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 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:	John Greenaway (Applicant) Ivan Garcia (First Respondent) Dian Garcia (Second Respondent)
Representation:	J Greenaway (Self-represented) (Applicant) D Garcia (Self-represented) (Both Respondents)
File Number(s):	2022/74311
Publication restriction:	No