Guirgis v Rothery - [2021] NSWLEC 1304

Land and Environment Court

New South Wales

Medium Neutral Citation: Guirgis v Rothery [2021] NSWLEC 1304
Hearing dates: 8 March 2021
Date of orders: 31 May 2021
Decision date: 31 May 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application is granted to the extent of the following orders.
(2) Within 7 days of the date of these orders the respondents are to give the neighbour immediately to their north a copy of these orders.
(3) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works:
(a) Remove deadwood >35 mm diameter from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;
(b) Carry out an aerial inspection of Trees 1 and 2 and remove any hazardous limbs from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;
(c) Remove any borers that can be located in the respondents’ side of Tree 2’s lower stem;
(d) Prepare a brief report outlining the completed works.
(4) The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.
(5) The respondents are to give the applicant 7 days’ notice of the works.
(6) The applicant is to allow all access necessary for the works to be completed.
(7) Within 7 days of completion of the works, the respondents are to give the applicant a copy of the report from order (3)(d) above.
(8) The exhibits are returned, except for Exhibits A and E.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage not demonstrated – risk of injury – one tree on a boundary – orders for pruning and inspection

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Fang v Li [2017] NSWLEC 1503

Texts Cited:
Australian Standard: AS2870 Residential Slabs & Footings
Australian Standard: AS4373 Pruning of Amenity Trees
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work

Category: Principal judgment
Parties: Germin Guirgis (Applicant)
Andrew Rothery (First Respondent)
Simone Rothery (Second Respondent)
Representation:
D Ceccattini (Solicitor) (Applicant)
T Poisel (Respondents)
Solicitors
Adams & Partners Lawyers (Applicant)
Bick & Steele (Respondents)

File Number(s): 2020/306997
Publication restriction: No

Judgment

Background to the application

Germin Guirgis (‘the applicant’) first applied to the Court seeking removal of four gum trees growing on the neighbouring Marayong property of Andrew and Simone Rothery (‘the respondents’). The application was amended as Ms Guirgis gathered more information about the neighbouring trees, one of which has several stems and appeared, from her property, as more than one tree.
Ms Guirgis’ application was made pursuant to s 7 (Pt…

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 Guirgis v Rothery

Details

AGLC: Guirgis v Rothery [2021] NSWLEC 1304
Case: [2021] NSWLEC 1304
Decision Date: 31 May 2021

CaseChat Overview and Summary

Guirgis v Rothery involved a dispute between the applicant and the respondents over the maintenance of trees on the respondents' property. The matter was heard in the Supreme Court of Queensland. The applicant sought orders for the removal of deadwood and the removal of hazardous limbs from trees on the respondents' property, which were overhanging the applicant's property. The respondents opposed the application.

The legal issues before the Court were whether the Court should grant the applicant's orders, and if so, what those orders should be. The Court considered whether the trees on the respondents' property posed a risk to the applicant's property, and whether the orders sought by the applicant were reasonable and proportionate to the risk posed by the trees. The Court also considered the rights of the respondents to maintain their property, including their trees.

The Court found that the trees on the respondents' property posed a risk to the applicant's property and that the orders sought by the applicant were reasonable and proportionate to the risk posed. The Court emphasised the importance of balancing the rights of both parties, and noted that the orders were not a complete removal of the trees, but rather a targeted removal of deadwood and hazardous limbs. The Court also noted that the orders required the respondents to engage a suitably qualified arborist to carry out the works, and that the works must be done in accordance with industry standards. The Court ordered that the respondents must carry out the works within 60 days, give the applicant notice of the works, and provide a report to the applicant upon completion of the works.

Orders

Orders of the court

The Court orders that:

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

(2) Within 7 days of the date of these orders the respondents are to give the neighbour immediately to their north a copy of these orders.

(3) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works:

(a) Remove deadwood >35 mm diameter from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;

(b) Carry out an aerial inspection of Trees 1 and 2 and remove any hazardous limbs from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;

(d) Prepare a brief report outlining the completed works.

(4) The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(5) The respondents are to give the applicant 7 days’ notice of the works.

(6) The applicant is to allow all access necessary for the works to be completed.

(7) Within 7 days of completion of the works, the respondents are to give the applicant a copy of the report from order (3)(d) above.

(8) The exhibits are returned, except for Exhibits A and E.

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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Medium Neutral Citation:	Guirgis v Rothery [2021] NSWLEC 1304
Hearing dates:	8 March 2021
Date of orders:	31 May 2021
Decision date:	31 May 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is granted to the extent of the following orders. (2) Within 7 days of the date of these orders the respondents are to give the neighbour immediately to their north a copy of these orders. (3) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works: (a) Remove deadwood >35 mm diameter from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties; (b) Carry out an aerial inspection of Trees 1 and 2 and remove any hazardous limbs from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties; (c) Remove any borers that can be located in the respondents’ side of Tree 2’s lower stem; (d) Prepare a brief report outlining the completed works. (4) The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (5) The respondents are to give the applicant 7 days’ notice of the works. (6) The applicant is to allow all access necessary for the works to be completed. (7) Within 7 days of completion of the works, the respondents are to give the applicant a copy of the report from order (3)(d) above. (8) The exhibits are returned, except for Exhibits A and E.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage not demonstrated – risk of injury – one tree on a boundary – orders for pruning and inspection
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Fang v Li [2017] NSWLEC 1503
Texts Cited:	Australian Standard: AS2870 Residential Slabs & Footings Australian Standard: AS4373 Pruning of Amenity Trees Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work
Category:	Principal judgment
Parties:	Germin Guirgis (Applicant) Andrew Rothery (First Respondent) Simone Rothery (Second Respondent)
Representation:	D Ceccattini (Solicitor) (Applicant) T Poisel (Respondents) Solicitors Adams & Partners Lawyers (Applicant) Bick & Steele (Respondents)
File Number(s):	2020/306997
Publication restriction:	No