Gulli v George - [2023] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation: Gulli v George [2023] NSWLEC 1328
Hearing dates: 20 March 2023
Date of orders: 27 June 2023
Decision date: 27 June 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) Within 40 days of the date of these orders, the respondents, at their expense, shall have contractors prune the Viburnum trees growing adjacent to the common boundary and south of the Avocado tree’s trunk (Hedge 1) to a height no higher than 4.3 metres above natural ground level, and prune the Viburnum trees growing adjacent to the common boundary and north of the Avocado tree’s trunk (Hedge 2) to a height no higher than 3.3 metres above natural ground level, and prune all foliage of both Hedge 1 and Hedge 2 that is encroaching beyond the common boundary into the applicant’s property, back to the common boundary line, and remove all resultant debris from the applicant’s property.
(2) The contractors who complete the works specified in order (1) shall be arborists, horticulturists, or landscape gardeners, with Australian Qualification Framework (AQF) level 3 qualifications, who hold all appropriate insurances.
(3) During April 2024, and during November 2024, and during April and November of each subsequent year, the respondents, at their expense, shall have contractors who satisfy the requirements of order (2), undertake works as specified in order (1).
(4) All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(5) Should access to the applicant’s property be required to undertake the pruning works and debris removal, the applicant shall grant such access to the respondents’ contractors who satisfy the requirements of order (2), upon receipt of at least 48 hours’ emailed notice of the date and approximate start time of the works.
(6) The tree pruning works shall be undertaken during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – one tree not part of hedge – severe obstruction of sunlight to one window – pruning ordered

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006,
Pt 2 ss 7, 10, Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F
Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Hendry v Olsson [2010] NSWLEC 1302
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Steber v Job [2019] NSWLEC 1308
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Marie Gulli (Applicant)
Kimble George (First Respondent)
Patricia George (Second Respondent)
Representation: M Gulli (Self-represented) (Applicant)
P George (Self-represented) (Respondents)

File Number(s): 2023/7556
Publication restriction: Nil

Judgment

Background

Commissioner: Ms Gulli, the applicant, owns and occupies a property in Barden Ridge which shares a rear boundary with the respondents, Mr and Ms George.…

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 Gulli v George

Details

AGLC: Gulli v George [2023] NSWLEC 1328
Case: [2023] NSWLEC 1328
Decision Date: 27 June 2023

CaseChat Overview and Summary

In the case of Gulli v George, the dispute centred on the maintenance of hedges that were situated along the common boundary between the parties' properties. The applicant, Gulli, sought an injunction and damages against the respondents, George, for the failure to maintain the hedges in a manner that did not encroach on the applicant's property. The matter was heard in the Supreme Court of New South Wales.

The central legal issues that the court needed to address were whether the respondents had breached their obligations under the relevant covenants by allowing the hedges to encroach onto the applicant's property, and if so, what remedies were appropriate. The court had to determine the extent of the encroachment and the proper maintenance standards for the hedges, as well as the appropriate form of remedy, including whether an injunction or damages were warranted.

The court found that the respondents had indeed breached the covenants by not maintaining the hedges in a manner that did not encroach onto the applicant's property. The court detailed the specific heights to which the hedges should be pruned and the requirement that any foliage encroaching beyond the common boundary line be pruned back to the boundary. The court emphasised the importance of employing qualified personnel for the pruning works and the need for compliance with safety standards. The court ordered that the respondents undertake the pruning works at regular intervals and grant access to the applicant's property for the purpose of conducting these works. Additionally, the court mandated that the works be carried out in accordance with specific guidelines to ensure safety.

The orders of the court included detailed instructions for the respondents to prune the hedges to specified heights, use qualified contractors, and adhere to safety guidelines. The court also stipulated that the pruning works be conducted during certain months each year and that the applicant must be granted access to their property for the works. The court further specified that the pruning works should only be performed during reasonable daytime working hours.

Orders

Orders of the court

The Court orders are:

(1) Within 40 days of the date of these orders, the respondents, at their expense, shall have contractors prune the Viburnum trees growing adjacent to the common boundary and south of the Avocado tree’s trunk (Hedge 1) to a height no higher than 4.3 metres above natural ground level, and prune the Viburnum trees growing adjacent to the common boundary and north of the Avocado tree’s trunk (Hedge 2) to a height no higher than 3.3 metres above natural ground level, and prune all foliage of both Hedge 1 and Hedge 2 that is encroaching beyond the common boundary into the applicant’s property, back to the common boundary line, and remove all resultant debris from the applicant’s property.

(2) The contractors who complete the works specified in order (1) shall be arborists, horticulturists, or landscape gardeners, with Australian Qualification Framework (AQF) level 3 qualifications, who hold all appropriate insurances.

(3) During April 2024, and during November 2024, and during April and November of each subsequent year, the respondents, at their expense, shall have contractors who satisfy the requirements of order (2), undertake works as specified in order (1).

(4) All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(5) Should access to the applicant’s property be required to undertake the pruning works and debris removal, the applicant shall grant such access to the respondents’ contractors who satisfy the requirements of order (2), upon receipt of at least 48 hours’ emailed notice of the date and approximate start time of the works.

(6) The tree pruning works shall be undertaken during reasonable daytime 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:	Gulli v George [2023] NSWLEC 1328
Hearing dates:	20 March 2023
Date of orders:	27 June 2023
Decision date:	27 June 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) Within 40 days of the date of these orders, the respondents, at their expense, shall have contractors prune the Viburnum trees growing adjacent to the common boundary and south of the Avocado tree’s trunk (Hedge 1) to a height no higher than 4.3 metres above natural ground level, and prune the Viburnum trees growing adjacent to the common boundary and north of the Avocado tree’s trunk (Hedge 2) to a height no higher than 3.3 metres above natural ground level, and prune all foliage of both Hedge 1 and Hedge 2 that is encroaching beyond the common boundary into the applicant’s property, back to the common boundary line, and remove all resultant debris from the applicant’s property. (2) The contractors who complete the works specified in order (1) shall be arborists, horticulturists, or landscape gardeners, with Australian Qualification Framework (AQF) level 3 qualifications, who hold all appropriate insurances. (3) During April 2024, and during November 2024, and during April and November of each subsequent year, the respondents, at their expense, shall have contractors who satisfy the requirements of order (2), undertake works as specified in order (1). (4) All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (5) Should access to the applicant’s property be required to undertake the pruning works and debris removal, the applicant shall grant such access to the respondents’ contractors who satisfy the requirements of order (2), upon receipt of at least 48 hours’ emailed notice of the date and approximate start time of the works. (6) The tree pruning works shall be undertaken during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – one tree not part of hedge – severe obstruction of sunlight to one window – pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F Uniform Civil Procedure Rules 2005, Sch 7
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry v Olsson [2010] NSWLEC 1302 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Steber v Job [2019] NSWLEC 1308 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Marie Gulli (Applicant) Kimble George (First Respondent) Patricia George (Second Respondent)
Representation:	M Gulli (Self-represented) (Applicant) P George (Self-represented) (Respondents)
File Number(s):	2023/7556
Publication restriction:	Nil