Jarrett v Hutchinson - [2020] NSWLEC 1365

Land and Environment Court

New South Wales

Medium Neutral Citation: Jarrett v Hutchinson [2020] NSWLEC 1365
Hearing dates: 28 May 2020
Date of orders: 14 August 2020
Decision date: 14 August 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(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 prune the tree, removing deadwood >50 mm in diameter and any hazardous branches. These works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work.
(2)   Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably experienced contractor to re-align the fence along the common boundary shared by the applicant and the respondent, within six metres of the tree, so that the fence is on the boundary, vertical and stable, and so that there is clearance of at least 100 mm between the fence and all parts of the tree, using suitable methods that maintain a stable fence that is child- and dog-proof.
(3)   The respondent is to give the applicant at least two days’ notice of the works in (1) and (2).
(4)   The applicant is to allow all access required by the arborist and the fencing contractor to carry out the works in (1) and (2) during reasonable hours of the day.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence – whether the tree caused damage – whether the tree must be removed – whether the fence must be replaced or repaired – who should pay for the works

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:
AS 4373-2007 Pruning of amenity trees
Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work
Wyong Development Control Plan 2013

Category: Principal judgment
Parties: Petina Norma Jarrett (Applicant)
Julie Hutchinson (Respondent)
Representation: P Jarrett (Litigant in person) (Applicant)
J Hutchinson (Litigant in person) (Respondent)

File Number(s): 2019/395449
Publication restriction: No

Judgment

Background to the application

Petina Jarrett (‘the applicant’) owns a residential property in Bateau Bay. Julie Hutchinson (‘the respondent’) owns the neighbouring property. Trees on Ms Hutchinson’s property include a Coast Banksia (Banksia integrifolia) (‘the tree’), which grows next to their common boundary and only a short distance from the dwelling on Ms Jarrett’s property.
After negotiating the pruning of a tree on Ms Hutchinson’s property in 2018, Ms Jarrett informed Ms Hutchinson that the wrong tree had been cut. She asked that Ms Hutchinson remove the Coast Banksia because it was displacing the boundary fence.
Communications between the parties continued for some time, mostly through a property agent. They were unable to come to a satisfactory outcome, so Ms Jarrett applied to the Court, pursuant to s 7 of the Trees (Disputes…

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 Jarrett v Hutchinson

Details

AGLC: Jarrett v Hutchinson [2020] NSWLEC 1365
Case: [2020] NSWLEC 1365
Decision Date: 14 August 2020

CaseChat Overview and Summary

In the matter of Jarrett v Hutchinson, the court addressed a dispute between two adjoining property owners regarding the maintenance and safety of a shared tree and fence. The applicant, Jarrett, sought orders to compel the respondent, Hutchinson, to undertake specific works on the tree and fence, citing concerns about the tree's condition and the stability of the shared fence. The dispute came before the court following negotiations between the parties that did not result in a resolution. The court was tasked with determining whether the applicant was entitled to the relief sought, which included pruning the tree and realigning the fence.

The primary legal issues the court needed to address were whether the applicant had a valid basis for seeking the orders, and if so, whether the court should grant the relief sought. The court considered whether the tree and fence posed a risk to the properties, the residents, and the public, and whether the respondent had a legal obligation to address these risks. Furthermore, the court examined the statutory obligations and industry standards that should guide the works to be carried out on the tree and fence.

The court found that the tree was indeed hazardous and that the fence was not properly aligned, posing potential risks to the properties and the public. It held that the respondent was obligated to undertake the works to mitigate these risks, in line with relevant industry standards and statutory obligations. The court emphasised the importance of ensuring safety and stability in shared boundary elements, particularly in light of the potential for harm to persons and property. Consequently, the court granted the applicant's application and issued specific orders for the respondent to engage qualified professionals to prune the tree and realign the fence, in accordance with relevant industry standards and safety guidelines. The court also set out timelines for the works to be carried out and required the respondent to provide notice to the applicant.

Orders

Orders of the court

(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 prune the tree, removing deadwood >50 mm in diameter and any hazardous branches. These works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work.

(2) Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably experienced contractor to re-align the fence along the common boundary shared by the applicant and the respondent, within six metres of the tree, so that the fence is on the boundary, vertical and stable, and so that there is clearance of at least 100 mm between the fence and all parts of the tree, using suitable methods that maintain a stable fence that is child- and dog-proof.

(3) The respondent is to give the applicant at least two days’ notice of the works in (1) and (2).

(4) The applicant is to allow all access required by the arborist and the fencing contractor to carry out the works in (1) and (2) during reasonable hours of the day.

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:	Jarrett v Hutchinson [2020] NSWLEC 1365
Hearing dates:	28 May 2020
Date of orders:	14 August 2020
Decision date:	14 August 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(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 prune the tree, removing deadwood >50 mm in diameter and any hazardous branches. These works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work. (2) Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably experienced contractor to re-align the fence along the common boundary shared by the applicant and the respondent, within six metres of the tree, so that the fence is on the boundary, vertical and stable, and so that there is clearance of at least 100 mm between the fence and all parts of the tree, using suitable methods that maintain a stable fence that is child- and dog-proof. (3) The respondent is to give the applicant at least two days’ notice of the works in (1) and (2). (4) The applicant is to allow all access required by the arborist and the fencing contractor to carry out the works in (1) and (2) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence – whether the tree caused damage – whether the tree must be removed – whether the fence must be replaced or repaired – who should pay for the works
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Texts Cited:	AS 4373-2007 Pruning of amenity trees Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work Wyong Development Control Plan 2013
Category:	Principal judgment
Parties:	Petina Norma Jarrett (Applicant) Julie Hutchinson (Respondent)
Representation:	P Jarrett (Litigant in person) (Applicant) J Hutchinson (Litigant in person) (Respondent)
File Number(s):	2019/395449
Publication restriction:	No