Holborow v Measures - [2012] NSWLEC 1101

Land and Environment Court

New South Wales

Medium Neutral Citation: Holborow v Measures [2012] NSWLEC 1101
Hearing dates: 26 April 2012
Decision date: 26 April 2012
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove T1 to ground level. The work is not to be done by crane but by arborists accessing the tree using modern arboricultural climbing techniques.
(2)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to prune T2 to remove the two low overextended limbs over the applicant's property, to remove all deadwood greater than 25 mm in diameter, and to reduce the remaining live crown by 15-20%.
(3)All works in order (2) are to conform to AS4373 Pruning of Amenity Trees.
(4)All works in orders (1) & (2) are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(5)The works in orders (1) & (2) are to be completed within 60 days of the date of these orders.
(6)The respondents are to provide the applicant with 3 working days notice of the works in orders (1) & (2).
(7)The applicant is to provide all access required for the works in orders (1) & (2) to be completed efficiently, including access for a truck and chipper to their driveway if necessary, during reasonable hours.
(8)The respondents are to prune T4 clear of the dwelling to provide clearance of at least one metre.
(9)The applicant is to allow access for works in (8) to be done on reasonable notice during reasonable hours.
(10)The respondents are to pay the applicant $400 within 14 days of the date of these orders.
(11)Following removal of T1, the respondents are to engage a fencing contractor to reinstate the section of fence displaced by T1 within 90 days of the date of these orders. The applicant and the respondents are to each pay 50% of the cost of these works. Both parties are to provide access required for these works to be completed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) - damage to property; risk of damage; risk of injury; removal ordered; pruning ordered; compensation ordered in part
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Category: Principal judgment
Parties:
Katherine Holborow (Applicant)
Richard Measures
Jennifer Measures (Respondents)
File Number(s): 21243 of 2011

Judgment

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

ACTING COMMISSIONER: Gilda Avenue in Wahroonga presents a landscape dominated by large native trees. Katherine Holborow has applied to the Court for the removal of a large gum tree (T1) on a neighbouring property and for the pruning of another large gum tree (T2) and two smaller trees (T3 and T4). She makes this application under the Trees (Disputes Between Neighbours) Act 2006, claiming that T1 has caused damage to their dwelling, 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.

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Details

Case: [2012] NSWLEC 1101
Decision Date: 26 April 2012

CaseChat Overview and Summary

In Holborow v Measures, the dispute arose from the condition of trees on the respondents' property that were affecting the applicant's property. The matter was heard in the Land and Environment Court of New South Wales. The applicant sought orders to address the condition of trees on the respondents' property, which were causing damage to the applicant's property and were a potential safety hazard.

The primary legal issues before the court were whether the trees on the respondents' property constituted a nuisance or hazard, and if so, what orders should be made to mitigate the issues. The court had to determine if the trees constituted a hazard under the relevant legislation and whether the respondents were responsible for ensuring the trees were properly maintained. Additionally, the court needed to decide the appropriate scope of works to be undertaken and the timeframe for completion.

The court found that the trees on the respondents' property constituted a hazard and nuisance to the applicant's property, particularly due to the condition of Tree T1 and Tree T2. The court held that the respondents had a duty to ensure the trees were maintained in a manner that did not cause harm to the neighbouring property. The court ordered the removal of Tree T1 to ground level and the pruning of Tree T2 to remove overextended limbs, deadwood, and to reduce the live crown. The court also mandated adherence to industry standards and codes of practice for the works. Furthermore, the court required the respondents to reinstate the section of fence displaced by Tree T1 and ordered the payment of $400 to the applicant as compensation.

The court's orders included specific timelines for the works, requirements for notice and access, and shared responsibility for the reinstatement of the fence. The court's decision provided a clear framework for the respondents to address the issues and mitigate the nuisance and hazard posed by the trees.

Orders

Orders of the court

(1)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove T1 to ground level. The work is not to be done by crane but by arborists accessing the tree using modern arboricultural climbing techniques.

(2)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to prune T2 to remove the two low overextended limbs over the applicant's property, to remove all deadwood greater than 25 mm in diameter, and to reduce the remaining live crown by 15-20%.

(3)All works in order (2) are to conform to AS4373 Pruning of Amenity Trees.

(4)All works in orders (1) & (2) are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5)The works in orders (1) & (2) are to be completed within 60 days of the date of these orders.

(6)The respondents are to provide the applicant with 3 working days notice of the works in orders (1) & (2).

(7)The applicant is to provide all access required for the works in orders (1) & (2) to be completed efficiently, including access for a truck and chipper to their driveway if necessary, during reasonable hours.

(8)The respondents are to prune T4 clear of the dwelling to provide clearance of at least one metre.

(9)The applicant is to allow access for works in (8) to be done on reasonable notice during reasonable hours.

(10)The respondents are to pay the applicant $400 within 14 days of the date of these orders.

(11)Following removal of T1, the respondents are to engage a fencing contractor to reinstate the section of fence displaced by T1 within 90 days of the date of these orders. The applicant and the respondents are to each pay 50% of the cost of these works. Both parties are to provide access required for these works to be completed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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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:	Holborow v Measures [2012] NSWLEC 1101
Hearing dates:	26 April 2012
Decision date:	26 April 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove T1 to ground level. The work is not to be done by crane but by arborists accessing the tree using modern arboricultural climbing techniques. (2)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to prune T2 to remove the two low overextended limbs over the applicant's property, to remove all deadwood greater than 25 mm in diameter, and to reduce the remaining live crown by 15-20%. (3)All works in order (2) are to conform to AS4373 Pruning of Amenity Trees. (4)All works in orders (1) & (2) are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry. (5)The works in orders (1) & (2) are to be completed within 60 days of the date of these orders. (6)The respondents are to provide the applicant with 3 working days notice of the works in orders (1) & (2). (7)The applicant is to provide all access required for the works in orders (1) & (2) to be completed efficiently, including access for a truck and chipper to their driveway if necessary, during reasonable hours. (8)The respondents are to prune T4 clear of the dwelling to provide clearance of at least one metre. (9)The applicant is to allow access for works in (8) to be done on reasonable notice during reasonable hours. (10)The respondents are to pay the applicant $400 within 14 days of the date of these orders. (11)Following removal of T1, the respondents are to engage a fencing contractor to reinstate the section of fence displaced by T1 within 90 days of the date of these orders. The applicant and the respondents are to each pay 50% of the cost of these works. Both parties are to provide access required for these works to be completed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) - damage to property; risk of damage; risk of injury; removal ordered; pruning ordered; compensation ordered in part
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Katherine Holborow (Applicant) Richard Measures Jennifer Measures (Respondents)
File Number(s):	21243 of 2011