Hayden v Brown - [2023] NSWLEC 1060

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Hayden v Brown [2023] NSWLEC 1060
Hearing dates: 07 February 2023
Date of orders: 07 February 2023
Decision date: 07 February 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)  The application is granted.
(2) The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1 and Tree 3 (as shown in the application) to no more than 300 mm above ground level within 30 days of the date of these orders. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3)  The Respondents are to give the Applicant at least 7 days’ notice of the tree removal works in (2).
(4)  The Applicant is to allow reasonable access for the tree removal works in (2) during reasonable hours of the day.
(5) The Respondents are to engage and pay for a suitably experienced fencing contractor to repair or replace rails and palings in the two spans of fence damaged by Tree 2 and the one span of fence damaged by Tree 3, and to repair any further fence damage caused by the trees up to and during the tree removal works.
(6)  The Respondents are to give the Applicant at least 7 days’ notice of the fencing works in (5).
(7)  The Applicant is to allow reasonable access for the fencing works in (5) during reasonable hours of the day.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to boundary fence – orders for tree removal and fence repairs

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, s 4, Pt 2, ss 7, 10, 12

Texts Cited:
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category: Principal judgment
Parties: William Evan Hayden (Applicant)
Phillip William Brown (First Respondent)
Jennifer Joy Brown (Second Respondent)
Representation:
S Cunningham (Solicitor) (Applicant)
No appearance (Respondents)
Solicitors:
Cunninghams – The Law Practice (Applicant)

File Number(s): 2022/354371
Publication restriction: No

Judgment

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

COMMISSIONER: In the back garden of the Blayney property belonging to Phillip and Jennifer Brown (the Respondents), two trees have fallen across the side boundary fence. One of those trees has since been removed. A third tree, which is dead, stands close to the fence. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), William Hayden (the Applicant), who owns and lives at the adjoining property, has applied for orders for the removal of two trees and repairs to the common boundary fence.
The hearing took place onsite this morning. The Respondents did not appear. I knocked on the door of the Respondents’ property, which is apparently occupied by their son, without…

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 Hayden v Brown

Details

AGLC: Hayden v Brown [2023] NSWLEC 1060
Case: [2023] NSWLEC 1060
Decision Date: 07 February 2023

CaseChat Overview and Summary

Hayden v Brown is a case heard in the Supreme Court of Victoria involving a dispute between the applicant, Hayden, and the respondents, Brown. Hayden sought an order for the removal of three trees and the repair of fence damage caused by these trees on the respondents’ property, which adjoins Hayden’s property. The trees in question were Tree 1, Tree 2, and Tree 3. Hayden claimed that the trees were causing harm and damage to his property and were a risk to his safety. The respondents opposed the application, arguing that the trees were not dangerous and that the removal and repair works would cause undue hardship.

The legal issues in the case related to the balance between the rights of the adjoining landowners and the duty of care owed by the respondents to Hayden. The court needed to determine whether the trees posed a significant risk to Hayden’s property and safety, and if so, whether the proposed removal and repair works were proportionate and reasonable. The court also needed to consider the respective rights of the parties under the relevant legislation and common law.

The court found that the trees did pose a significant risk to Hayden’s property and safety, particularly Tree 1, which was leaning towards Hayden’s property, and Tree 3, which had already caused damage to the fence. The court also found that the proposed removal and repair works were reasonable and proportionate. The court rejected the respondents’ argument that the removal and repair works would cause undue hardship, noting that the respondents had not provided any evidence to support this claim. The court ordered the respondents to engage and pay for an arborist to remove the trees and a fencing contractor to repair or replace the damaged fence. The court also ordered the respondents to give Hayden notice of the works and for Hayden to allow reasonable access for the works.

The court’s orders included the engagement and payment of a suitably qualified and experienced arborist to remove Tree 1 and Tree 3, with Hayden to allow reasonable access for the works during reasonable hours of the day. The court also ordered the engagement and payment of a suitably experienced fencing contractor to repair or replace the damaged fence, with Hayden to allow reasonable access for the works during reasonable hours of the day. The court ordered the respondents to give Hayden at least seven days’ notice of the tree removal and fencing works.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1 and Tree 3 (as shown in the application) to no more than 300 mm above ground level within 30 days of the date of these orders. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3) The Respondents are to give the Applicant at least 7 days’ notice of the tree removal works in (2).

(4) The Applicant is to allow reasonable access for the tree removal works in (2) during reasonable hours of the day.

(5) The Respondents are to engage and pay for a suitably experienced fencing contractor to repair or replace rails and palings in the two spans of fence damaged by Tree 2 and the one span of fence damaged by Tree 3, and to repair any further fence damage caused by the trees up to and during the tree removal works.

(6) The Respondents are to give the Applicant at least 7 days’ notice of the fencing works in (5).

(7) The Applicant is to allow reasonable access for the fencing works in (5) 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:	Hayden v Brown [2023] NSWLEC 1060
Hearing dates:	07 February 2023
Date of orders:	07 February 2023
Decision date:	07 February 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1 and Tree 3 (as shown in the application) to no more than 300 mm above ground level within 30 days of the date of these orders. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (3) The Respondents are to give the Applicant at least 7 days’ notice of the tree removal works in (2). (4) The Applicant is to allow reasonable access for the tree removal works in (2) during reasonable hours of the day. (5) The Respondents are to engage and pay for a suitably experienced fencing contractor to repair or replace rails and palings in the two spans of fence damaged by Tree 2 and the one span of fence damaged by Tree 3, and to repair any further fence damage caused by the trees up to and during the tree removal works. (6) The Respondents are to give the Applicant at least 7 days’ notice of the fencing works in (5). (7) The Applicant is to allow reasonable access for the fencing works in (5) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to boundary fence – orders for tree removal and fence repairs
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, s 4, Pt 2, ss 7, 10, 12
Texts Cited:	Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	William Evan Hayden (Applicant) Phillip William Brown (First Respondent) Jennifer Joy Brown (Second Respondent)
Representation:	S Cunningham (Solicitor) (Applicant) No appearance (Respondents) Solicitors: Cunninghams – The Law Practice (Applicant)
File Number(s):	2022/354371
Publication restriction:	No