Jackson v Phillips - [2019] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation: Jackson v Phillips [2019] NSWLEC 1271
Hearing dates: 31 May 2019
Date of orders: 31 May 2019
Decision date: 31 May 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   Within 30 days of the date of these orders the respondents are to remove or kill all bamboo within the lower area of ground surrounding their Scribbly Gum. (This order does not apply to bamboo within the raised planter boxes.)
(2)   The respondents are to take any measures necessary to prevent regrowth of the bamboo within the lower area of ground surrounding their Scribbly Gum.
(3)   After 10 July 2019 and within 90 days of the date of these orders the respondents are to engage and pay for a suitably experienced fencing contractor with all appropriate insurance to repair the displaced section of fence on the common boundary, being the two steel panels nearest the gum tree, so that: it is in line with the remainder of the fence; it is vertical; and it matches the existing fence. No parts of the tree, including its roots, are to be damaged by these works. The bottom rail of the fence is to be located or adjusted, as necessary, to allow clearance of at least 200 mm to any part of the tree.
(4)   The respondents are to give the applicant seven days’ notice of the works in (3).
(5)   The applicant is to allow any access necessary during reasonable hours of the day for the works in (3).
(6)   In March 2020 and in March every two years thereafter the respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune their gum tree to remove from the crown above the applicant’s property all deadwood greater than 25 mm in diameter and any hazardous branches. The works are to be done in accordance with the guidelines of AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
(7)   The respondents are to give the applicant seven days’ notice of each occasion of the works in (6).
(8)   The applicant is to allow any access necessary during reasonable hours of the day for each occasion of the works in (6).

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – fence – risk of injury
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057
Texts Cited: AS4373:2007 Pruning of amenity trees
Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work
Category: Principal judgment
Parties: Rhonda Jackson (Applicant)
Mark Phillips (First Respondent)
Lillian Phillips (Second Respondent)
Representation: R Jackson, litigant in person (Applicant)
M Phillips and L Phillips, litigants in person (Respondents)

File Number(s): 2019/46581
Publication restriction: No

Judgment

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

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 Jackson v Phillips

Details

AGLC: Jackson v Phillips [2019] NSWLEC 1271
Case: [2019] NSWLEC 1271
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Jackson v Phillips was heard in the Local Court of New South Wales. The applicant, Mr Jackson, sought relief against his neighbours, the respondents, over several disputes related to the maintenance of a gum tree and bamboo plants on their property. The disputes included the encroachment of bamboo onto Mr Jackson's property, damage to a shared fence, and concerns about the maintenance of the gum tree. Mr Jackson alleged that these issues were causing harm to his property and posed a safety risk.

The court was tasked with determining whether the respondents' actions constituted a nuisance or were otherwise unlawful. This included assessing the encroachment of bamboo onto Mr Jackson's property, the condition of the shared fence, and the maintenance of the gum tree. The court also needed to consider whether the respondents had a duty of care to prevent harm to Mr Jackson's property and whether they had breached any local laws or regulations regarding tree and plant maintenance.

The court found that the respondents' actions did indeed constitute a nuisance and were unlawful. The bamboo plants were encroaching onto Mr Jackson's property, posing a risk of damage to his garden and structures. The shared fence had been damaged, and the condition of the gum tree was such that it posed a risk of falling branches onto Mr Jackson's property. The court ordered the respondents to remove the encroaching bamboo, repair the fence, and engage qualified arborists to regularly prune the gum tree to ensure it did not pose a risk to Mr Jackson's property. The court also mandated that the respondents give notice to Mr Jackson before undertaking any works and that Mr Jackson allow reasonable access to his property for these works to be carried out.

The final orders of the court included specific directions for the removal of the bamboo, the repair of the fence, and the regular pruning of the gum tree. The respondents were required to take these actions within specified timeframes and to adhere to safety guidelines. Mr Jackson was also required to allow access to his property for the purposes of these works. These orders were designed to address the nuisance and ensure the safety of both properties.

Orders

Orders of the court

The Court orders:

(1) Within 30 days of the date of these orders the respondents are to remove or kill all bamboo within the lower area of ground surrounding their Scribbly Gum. (This order does not apply to bamboo within the raised planter boxes.)

(2) The respondents are to take any measures necessary to prevent regrowth of the bamboo within the lower area of ground surrounding their Scribbly Gum.

(3) After 10 July 2019 and within 90 days of the date of these orders the respondents are to engage and pay for a suitably experienced fencing contractor with all appropriate insurance to repair the displaced section of fence on the common boundary, being the two steel panels nearest the gum tree, so that: it is in line with the remainder of the fence; it is vertical; and it matches the existing fence. No parts of the tree, including its roots, are to be damaged by these works. The bottom rail of the fence is to be located or adjusted, as necessary, to allow clearance of at least 200 mm to any part of the tree.

(4) The respondents are to give the applicant seven days’ notice of the works in (3).

(5) The applicant is to allow any access necessary during reasonable hours of the day for the works in (3).

(6) In March 2020 and in March every two years thereafter the respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune their gum tree to remove from the crown above the applicant’s property all deadwood greater than 25 mm in diameter and any hazardous branches. The works are to be done in accordance with the guidelines of AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(7) The respondents are to give the applicant seven days’ notice of each occasion of the works in (6).

(8) The applicant is to allow any access necessary during reasonable hours of the day for each occasion of the works in (6).

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Jackson v Phillips [2019] NSWLEC 1271
Hearing dates:	31 May 2019
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) Within 30 days of the date of these orders the respondents are to remove or kill all bamboo within the lower area of ground surrounding their Scribbly Gum. (This order does not apply to bamboo within the raised planter boxes.) (2) The respondents are to take any measures necessary to prevent regrowth of the bamboo within the lower area of ground surrounding their Scribbly Gum. (3) After 10 July 2019 and within 90 days of the date of these orders the respondents are to engage and pay for a suitably experienced fencing contractor with all appropriate insurance to repair the displaced section of fence on the common boundary, being the two steel panels nearest the gum tree, so that: it is in line with the remainder of the fence; it is vertical; and it matches the existing fence. No parts of the tree, including its roots, are to be damaged by these works. The bottom rail of the fence is to be located or adjusted, as necessary, to allow clearance of at least 200 mm to any part of the tree. (4) The respondents are to give the applicant seven days’ notice of the works in (3). (5) The applicant is to allow any access necessary during reasonable hours of the day for the works in (3). (6) In March 2020 and in March every two years thereafter the respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune their gum tree to remove from the crown above the applicant’s property all deadwood greater than 25 mm in diameter and any hazardous branches. The works are to be done in accordance with the guidelines of AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (7) The respondents are to give the applicant seven days’ notice of each occasion of the works in (6). (8) The applicant is to allow any access necessary during reasonable hours of the day for each occasion of the works in (6).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – fence – risk of injury
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057
Texts Cited:	AS4373:2007 Pruning of amenity trees Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Rhonda Jackson (Applicant) Mark Phillips (First Respondent) Lillian Phillips (Second Respondent)
Representation:	R Jackson, litigant in person (Applicant) M Phillips and L Phillips, litigants in person (Respondents)
File Number(s):	2019/46581
Publication restriction:	No