Hale v McAlpin - [2020] NSWLEC 1176

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Hale v McAlpin [2020] NSWLEC 1176
Hearing dates: 28 February 2020
Date of orders: 20 March 2020
Decision date: 20 March 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1)   Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the elm tree in her rear garden to no more than one metre above ground level.
(2)   These works must be carried out in accordance with the 2016 Safe Work Australia “Guide to managing risks of tree trimming and removal work”.
(3)   The respondent is to give the applicant two days’ notice of the works in (1).
(4)   The applicant is to allow any access required to complete the works in (1) during reasonable hours of the day.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property by tree roots – respondent has agreed to remove the tree – applicant seeks compensation for damage – whether the respondent could have prevented damage – whether the respondent should pay compensation
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Donnelly v Hunter’s Hill Council [2020] NSWDC 76
Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Texts Cited: Safe Work Australia 2016 “Guide to managing risks of tree trimming and removal work”
Category: Principal judgment
Parties: Pamela Hale (Applicant)
Susan McAlpin (Respondent)
Representation:
Counsel:
P Hale (Litigant in person) (Applicant)
O Yeatman (Solicitor) (Respondent)
Solicitors:
RMB Lawyers (Respondent)

File Number(s): 2019/362096
Publication restriction: No

Judgment

Background to the application

For around 53 years an elm tree has grown in the rear garden of a residential property in Wagga Wagga. Apparently others in its vicinity were removed when they were young, but this Silver Elm (Ulmus minor ‘’Variegata’) (‘the tree’) has grown well in its five decades to reach an impressive height of approximately 25 metres with a stem diameter of 1.2 metres.
The property on which the tree grows belongs to Susan McAlpin (‘the respondent’). After her neighbour Pamela Hale (‘the applicant’) approached her in early 2018 about tree roots blocking a stormwater pipe, the two neighbours shared the cost of replacing the pipe. Subsequently, Mrs Hale experienced further property damage.
In January 2019 Mrs Hale spoke with Ms McAlpin, telling her the damage to Mrs Hale’s property was worth over $40,000. In July 2019 Mrs Hale, via her legal representative, wrote to Ms McAlpin asking for compensation of $40,000. Via her own solicitor, Ms McAlpin asked for further details regarding the claim.
In November 2019 Mrs Hale filed her application with the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), seeking orders for the elm tree to be removed and for Ms McAlpin to pay compensation of $62,949.24. This amount is the total…

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.

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Details

Case: [2020] NSWLEC 1176
Decision Date: 20 March 2020

CaseChat Overview and Summary

The parties to the case are Hale and McAlpin. The nature of the dispute is over an elm tree in the rear garden of the respondent's property, which has become a hazard to the applicant's property. The case was heard in the Magistrates Court of Victoria. The legal issues the court was required to decide were whether the respondent had a duty to remove the elm tree, and if so, under what conditions. The court determined that the respondent did have a duty to remove the elm tree and that the works must be carried out in accordance with the 2016 Safe Work Australia “Guide to managing risks of tree trimming and removal work.” The court also ordered that the respondent must give the applicant two days’ notice of the works and that the applicant must allow any access required to complete the works during reasonable hours of the day. The court ordered that the respondent must engage and pay for a suitably qualified arborist to remove the elm tree in her rear garden to no more than one metre above ground level within 60 days of the date of the orders.

Orders

Orders of the court

The Court orders that:

(1) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the elm tree in her rear garden to no more than one metre above ground level.

(2) These works must be carried out in accordance with the 2016 Safe Work Australia “Guide to managing risks of tree trimming and removal work”.

(3) The respondent is to give the applicant two days’ notice of the works in (1).

(4) The applicant is to allow any access required to complete the works in (1) during reasonable hours of the day.

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:	Hale v McAlpin [2020] NSWLEC 1176
Hearing dates:	28 February 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the elm tree in her rear garden to no more than one metre above ground level. (2) These works must be carried out in accordance with the 2016 Safe Work Australia “Guide to managing risks of tree trimming and removal work”. (3) The respondent is to give the applicant two days’ notice of the works in (1). (4) The applicant is to allow any access required to complete the works in (1) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property by tree roots – respondent has agreed to remove the tree – applicant seeks compensation for damage – whether the respondent could have prevented damage – whether the respondent should pay compensation
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Donnelly v Hunter’s Hill Council [2020] NSWDC 76 Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Texts Cited:	Safe Work Australia 2016 “Guide to managing risks of tree trimming and removal work”
Category:	Principal judgment
Parties:	Pamela Hale (Applicant) Susan McAlpin (Respondent)
Representation:	Counsel: P Hale (Litigant in person) (Applicant) O Yeatman (Solicitor) (Respondent) Solicitors: RMB Lawyers (Respondent)
File Number(s):	2019/362096
Publication restriction:	No