Jessup v Watson - [2022] NSWLEC 1694

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Jessup v Watson [2022] NSWLEC 1694
Hearing dates: 07 October 2022
Date of orders: 07 October 2022
Decision date: 07 October 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
Orders of the Court are:
(1) Within 60 days of the date of these orders, the respondent shall employ AQF level 3 arborists (the arborists), with all appropriate insurance, to prune the broken branch currently resting in the canopy of the Angophora costata to the branch collar approximately. 500mm below the point of partial breakage, in accordance with Clause 7.2.4 (Selective Pruning) of AS4373-2007 Pruning of amenity trees.
(2) Within 3 days of the completion of the works in order 1 (the works), the respondent shall email the applicant a copy of a paid itemised invoice for the works.
(3) Within 3 days of the receipt of said paid invoice, the applicant shall reimburse the respondent a quantum equivalent to 50% of the total of the invoice, by E.F.T. or bank cheque, provided the total cost of the works is less than or equal to $1628.00, being the cost of the works as specified by Forest Tree Service in their quote 2715 dated 5 July 2022 5/7/2022.
(4) Should the cost of the works exceed $1628.00, within 3 days of the receipt of the paid invoice, the applicant shall reimburse the respondent $814.00, being 50% of Forest Tree Services Quote 2715, by E.F.T. or bank cheque.
(5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(6) The applicant shall allow access to her property for completion of the works, should it be required by the arborists, upon receipt of at least 48 hours’ notice from the respondent, provided to the applicant via email.
(7) The works shall be completed during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) - apprehension of damage and injury

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes between Neighbours) Act 2006 ss 6, 7, 8, 10, 12

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513
McPherson v Lake [2017] NSWLEC 1081
Reuben v Lace [2010] NSWLEC 1024
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4373-2007 Pruning of amenity trees
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category: Principal judgment
Parties: Jennifer Joy Jessup (Applicant)
David Dean Watson (Respondent)
Representation:
A Jessup (Solicitor) (Applicant)
D Watson (Self-represented) (Respondent)
Solicitors:
Piper Alderman (Applicant)

File Number(s): 22/212417
Publication restriction: No

JUDGEMENT

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

COMMISSIONER: Mrs Jessup (the applicant), and Mr Watson (the respondent), share a side boundary between their properties in Roseville Chase. The applicant’s property is located on the north-eastern side of the respondent’s land, and both properties face the same street, to the south-east.

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 Jessup v Watson

Details

AGLC: Jessup v Watson [2022] NSWLEC 1694
Case: [2022] NSWLEC 1694
Decision Date: 07 October 2022

CaseChat Overview and Summary

In the case of Jessup v Watson, the applicant, Jessup, sought orders from the court against the respondent, Watson, concerning the maintenance of a tree on the boundary of their respective properties. The dispute centred on the need to prune a broken branch of an Angophora costata tree, which was causing concern for its stability and potential damage to property. The case was heard and determined in the Local Court of New South Wales.

The court was tasked with deciding whether the respondent was required to undertake specific pruning works on the tree, and if so, what the terms of such works should be. The primary legal issue was whether the respondent had a duty to address the broken branch, considering its potential to cause harm, and if the applicant’s request for reimbursement was reasonable and proportionate. Additionally, the court had to determine the specific terms under which the works should be carried out, including the level of expertise required for the pruning and the manner of reimbursement.

The court found that the respondent had a responsibility to ensure that the tree did not pose a risk to the applicant's property. The broken branch was deemed a significant hazard, warranting immediate attention. The court outlined that the works should be performed by arborists with a minimum qualification of AQF level 3, adhering to the guidelines set forth in AS4373-2007. Furthermore, the court held that the applicant was entitled to reimbursement for half the cost of the works, subject to a maximum cap, ensuring that the financial burden was fairly shared between the parties. The court also stipulated that all works must comply with safety standards and be conducted during reasonable hours, with proper notice given to the applicant for access to her property.

The orders of the court mandated that the respondent engage qualified arborists to prune the broken branch within a specified timeframe and adhere to safety guidelines. The court set out a detailed reimbursement schedule contingent upon the total cost of the works, ensuring clarity and predictability in the financial arrangement. Furthermore, the court required the applicant to allow access to her property for the completion of the works, provided the respondent gave adequate notice.

Orders

Orders of the court

Orders of the Court are:

(1) Within 60 days of the date of these orders, the respondent shall employ AQF level 3 arborists (the arborists), with all appropriate insurance, to prune the broken branch currently resting in the canopy of the Angophora costata to the branch collar approximately. 500mm below the point of partial breakage, in accordance with Clause 7.2.4 (Selective Pruning) of AS4373-2007 Pruning of amenity trees.

(2) Within 3 days of the completion of the works in order 1 (the works), the respondent shall email the applicant a copy of a paid itemised invoice for the works.

(3) Within 3 days of the receipt of said paid invoice, the applicant shall reimburse the respondent a quantum equivalent to 50% of the total of the invoice, by E.F.T. or bank cheque, provided the total cost of the works is less than or equal to $1628.00, being the cost of the works as specified by Forest Tree Service in their quote 2715 dated 5 July 2022 5/7/2022.

(4) Should the cost of the works exceed $1628.00, within 3 days of the receipt of the paid invoice, the applicant shall reimburse the respondent $814.00, being 50% of Forest Tree Services Quote 2715, by E.F.T. or bank cheque.

(5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) The applicant shall allow access to her property for completion of the works, should it be required by the arborists, upon receipt of at least 48 hours’ notice from the respondent, provided to the applicant via email.

(7) The works shall be completed during reasonable working hours.

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:	Jessup v Watson [2022] NSWLEC 1694
Hearing dates:	07 October 2022
Date of orders:	07 October 2022
Decision date:	07 October 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	Orders of the Court are: (1) Within 60 days of the date of these orders, the respondent shall employ AQF level 3 arborists (the arborists), with all appropriate insurance, to prune the broken branch currently resting in the canopy of the Angophora costata to the branch collar approximately. 500mm below the point of partial breakage, in accordance with Clause 7.2.4 (Selective Pruning) of AS4373-2007 Pruning of amenity trees. (2) Within 3 days of the completion of the works in order 1 (the works), the respondent shall email the applicant a copy of a paid itemised invoice for the works. (3) Within 3 days of the receipt of said paid invoice, the applicant shall reimburse the respondent a quantum equivalent to 50% of the total of the invoice, by E.F.T. or bank cheque, provided the total cost of the works is less than or equal to $1628.00, being the cost of the works as specified by Forest Tree Service in their quote 2715 dated 5 July 2022 5/7/2022. (4) Should the cost of the works exceed $1628.00, within 3 days of the receipt of the paid invoice, the applicant shall reimburse the respondent $814.00, being 50% of Forest Tree Services Quote 2715, by E.F.T. or bank cheque. (5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (6) The applicant shall allow access to her property for completion of the works, should it be required by the arborists, upon receipt of at least 48 hours’ notice from the respondent, provided to the applicant via email. (7) The works shall be completed during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) - apprehension of damage and injury
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes between Neighbours) Act 2006 ss 6, 7, 8, 10, 12
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 McPherson v Lake [2017] NSWLEC 1081 Reuben v Lace [2010] NSWLEC 1024 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373-2007 Pruning of amenity trees Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category:	Principal judgment
Parties:	Jennifer Joy Jessup (Applicant) David Dean Watson (Respondent)
Representation:	A Jessup (Solicitor) (Applicant) D Watson (Self-represented) (Respondent) Solicitors: Piper Alderman (Applicant)
File Number(s):	22/212417
Publication restriction:	No