Hampton v Hanna - [2019] NSWLEC 1066

Land and Environment Court

New South Wales

Medium Neutral Citation: Hampton v Hanna [2019] NSWLEC 1066
Hearing dates: 24 January 2019
Date of orders: 28 February 2019
Decision date: 28 February 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1)   The respondents are to remove the Araucaria columnaris to near ground level and poison its stump. This tree removal shall be undertaken by an AQF level 3 qualified arborist with appropriate Public Liability insurance. The tree removal shall meet SafeWork NSW Work, Health and Safety (WHS) guidelines, and the Workcover NSW Code of Practice for the Amenity Tree Industry. This work shall be completed within 45 days of the date of these orders.
(2)   The respondents are to remove the woody root incursion from the sewer pipe, and repair and/or replace the sewer pipe, so as to render the pipe fully functional. This work shall satisfy Sydney Water requirements. This work shall be undertaken by a licenced plumber, with appropriate Public Liability insurance, and meet SafeWork NSW WHS guidelines. This work shall be completed within 45 days of the date of these orders.
(3)   Should the respondents not complete these works within 45 days of the date of these orders, Mrs Hampton may contract licensed plumbers, and AQF level 3 qualified arborists, who may enter the respondents’ property, so as to complete the works as specified in Orders (1) and (2). Access for such works is subject to 48 hours written notice being provided to the respondents, or to their agent, and is to be gained during reasonable working hours. Upon completion, receipted invoices for these works are to be provided to the respondents, or to their agent, and the respondents are to reimburse the applicant for the total cost shown on these receipted invoices within 21 days of receiving the invoices. These works must be completed within 60 days of the termination of the 45 day period specified in Orders (1) and (2), and if they are not completed within that period, this order lapses.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property – consequential damage – risk of injury
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Abdishou v Khoury [2010] NSWLEC 1268
McCormack v Spencer [2008] NSWLEC 1285
Muir v Owners Corporation SP 35683 [2011] NSWLEC 1276
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Kellie Patricia Hampton (Applicant)
Anwar Hanna (First Respondent)
Wansa Hanna (Second Respondent)
Representation:
Solicitors:
E Georges, G & S Law Group (Respondents)
Other:
K Hampton, litigant in person (Applicant)

File Number(s): 2018/292612
Publication restriction: No

Judgment

COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Kellie Hampton of Mount Pritchard, involving damage relating to a tree or trees (the trees) located in the rear yard of the adjacent neighbouring property.

Background

Mrs Hampton reports sewer pipe blockage that…

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 Hampton v Hanna

Details

AGLC: Hampton v Hanna [2019] NSWLEC 1066
Case: [2019] NSWLEC 1066
Decision Date: 28 February 2019

CaseChat Overview and Summary

The matter of Hampton v Hanna was heard in the NSW Local Court, where Mrs Hampton sought an injunction against her neighbours, the respondents, to remove a tree and a root incursion affecting her property. The central dispute involved an Araucaria columnaris tree planted by the respondents, which had grown and caused damage to Mrs Hampton’s property, specifically her sewer pipe. Mrs Hampton argued that the tree and the root incursion had led to blockages and damage to her property, which she sought to have rectified.

The legal issues before the court were whether the respondents were responsible for the damage caused by the tree and its root incursion, and if so, what remedy was appropriate. The court needed to consider the principles of nuisance and property law, determining whether the tree's growth and root incursion constituted an unreasonable interference with Mrs Hampton’s use and enjoyment of her property. Additionally, the court had to decide on the appropriate form of relief, including whether an injunction was necessary and, if so, what specific actions the respondents must undertake to remedy the situation.

In delivering the judgment, the court found that the tree and its root incursion constituted a nuisance, as they had unreasonably interfered with Mrs Hampton’s property. The court noted that the tree was planted close to the boundary, and the respondents were aware of the potential for root incursion. The court ordered the removal of the tree and the root incursion, and the repair or replacement of the affected sewer pipe. The orders specified that these works must be carried out by qualified professionals within a set timeframe, and if the respondents failed to comply, Mrs Hampton was permitted to engage her own professionals to carry out the works and seek reimbursement from the respondents. The court also set out detailed requirements for the execution of these works to ensure compliance with relevant safety and industry standards.

The orders of the court mandated the removal of the tree to near ground level and the poisoning of its stump by a qualified arborist. The root incursion from the sewer pipe was to be removed and the pipe repaired or replaced by a licensed plumber. These works had to be completed within 45 days of the orders, with additional provisions for Mrs Hampton to engage her own professionals if the respondents did not comply within the specified timeframe. Furthermore, the court detailed the qualifications and insurance requirements for the professionals undertaking the works, and the adherence to safety and industry standards.

Orders

Orders of the court

The orders of the Court are:

(1) The respondents are to remove the Araucaria columnaris to near ground level and poison its stump. This tree removal shall be undertaken by an AQF level 3 qualified arborist with appropriate Public Liability insurance. The tree removal shall meet SafeWork NSW Work, Health and Safety (WHS) guidelines, and the Workcover NSW Code of Practice for the Amenity Tree Industry. This work shall be completed within 45 days of the date of these orders.

(2) The respondents are to remove the woody root incursion from the sewer pipe, and repair and/or replace the sewer pipe, so as to render the pipe fully functional. This work shall satisfy Sydney Water requirements. This work shall be undertaken by a licenced plumber, with appropriate Public Liability insurance, and meet SafeWork NSW WHS guidelines. This work shall be completed within 45 days of the date of these orders.

(3) Should the respondents not complete these works within 45 days of the date of these orders, Mrs Hampton may contract licensed plumbers, and AQF level 3 qualified arborists, who may enter the respondents’ property, so as to complete the works as specified in Orders (1) and (2). Access for such works is subject to 48 hours written notice being provided to the respondents, or to their agent, and is to be gained during reasonable working hours. Upon completion, receipted invoices for these works are to be provided to the respondents, or to their agent, and the respondents are to reimburse the applicant for the total cost shown on these receipted invoices within 21 days of receiving the invoices. These works must be completed within 60 days of the termination of the 45 day period specified in Orders (1) and (2), and if they are not completed within that period, this order lapses.

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:	Hampton v Hanna [2019] NSWLEC 1066
Hearing dates:	24 January 2019
Date of orders:	28 February 2019
Decision date:	28 February 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) The respondents are to remove the Araucaria columnaris to near ground level and poison its stump. This tree removal shall be undertaken by an AQF level 3 qualified arborist with appropriate Public Liability insurance. The tree removal shall meet SafeWork NSW Work, Health and Safety (WHS) guidelines, and the Workcover NSW Code of Practice for the Amenity Tree Industry. This work shall be completed within 45 days of the date of these orders. (2) The respondents are to remove the woody root incursion from the sewer pipe, and repair and/or replace the sewer pipe, so as to render the pipe fully functional. This work shall satisfy Sydney Water requirements. This work shall be undertaken by a licenced plumber, with appropriate Public Liability insurance, and meet SafeWork NSW WHS guidelines. This work shall be completed within 45 days of the date of these orders. (3) Should the respondents not complete these works within 45 days of the date of these orders, Mrs Hampton may contract licensed plumbers, and AQF level 3 qualified arborists, who may enter the respondents’ property, so as to complete the works as specified in Orders (1) and (2). Access for such works is subject to 48 hours written notice being provided to the respondents, or to their agent, and is to be gained during reasonable working hours. Upon completion, receipted invoices for these works are to be provided to the respondents, or to their agent, and the respondents are to reimburse the applicant for the total cost shown on these receipted invoices within 21 days of receiving the invoices. These works must be completed within 60 days of the termination of the 45 day period specified in Orders (1) and (2), and if they are not completed within that period, this order lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property – consequential damage – risk of injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Abdishou v Khoury [2010] NSWLEC 1268 McCormack v Spencer [2008] NSWLEC 1285 Muir v Owners Corporation SP 35683 [2011] NSWLEC 1276 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Kellie Patricia Hampton (Applicant) Anwar Hanna (First Respondent) Wansa Hanna (Second Respondent)
Representation:	Solicitors: E Georges, G & S Law Group (Respondents) Other: K Hampton, litigant in person (Applicant)
File Number(s):	2018/292612
Publication restriction:	No