Johnson v Kaushik - [2024] NSWLEC 1374

Land and Environment Court

New South Wales

Medium Neutral Citation: Johnson v Kaushik [2024] NSWLEC 1374
Hearing dates: 26 March 2024
Date of orders: 03 July 2024
Decision date: 03 July 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court Orders that:
(1) The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree’s canopy overhanging the applicants’ land, and overhanging the respondents’ land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows:
(a) The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants’ land, the branch on the right-hand side which extends over the applicants’ back yard shall be removed.
(b) The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed.
(c) Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed.
(2) The works in Order 1 shall be completed within 60 days of the date of these orders.
(3) In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree’s canopy overhanging the applicants’ land and overhanging the respondents’ land within 1 m of the common boundary.
(4) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours.
(5) The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours’ notice from the respondents or the respondents’ agent by email, advising the date and approximate start time. Copies of the arborists’ qualifications and insurance Certificates of Currency shall be attached to each email.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree with copious deadwood – apprehension of damage and injury – sticks and leaves falling onto dwelling roof and back yard

Legislation Cited:
Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12, Pt 2
State Environmental Planning Policy (Biodiversity and Conservation) 2021

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe…

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 Johnson v Kaushik

Details

AGLC: Johnson v Kaushik [2024] NSWLEC 1374
Case: [2024] NSWLEC 1374
Decision Date: 03 July 2024

CaseChat Overview and Summary

The case of Johnson v Kaushik arose from a dispute between neighbouring property owners regarding the maintenance of a large tree on the respondents' property, which was causing issues due to its overhanging branches onto the applicants' land. The applicants sought an injunction from the Court to require the respondents to prune the overhanging branches. The matter was heard and determined in the Local Court of New South Wales.

The primary legal issue for the Court to decide was whether the respondents were required to undertake specific pruning works on the tree overhanging the applicants' property to mitigate potential harm caused by the overhang. The applicants argued that the tree posed a significant risk to their property and health due to the overhanging branches, and that the respondents had a duty to address this issue. The respondents, on the other hand, contended that they had already taken reasonable steps to maintain the tree and that the pruning works requested by the applicants were excessive and unnecessary.

The Court found that the overhanging branches of the tree did indeed pose a risk to the applicants' property and safety, and that the respondents had a duty to mitigate this risk. The Court was satisfied that the specific pruning works requested by the applicants were necessary and proportionate to address the issues caused by the overhanging branches. Consequently, the Court ordered the respondents to employ qualified arborists to prune the specified branches within a set timeframe and to maintain this maintenance on an annual basis.

The Court further ordered that the pruning works must comply with specific standards and guidelines, including the Australian Standard AS4373:2007, and the Safe Work Australia guide. The applicants were required to provide reasonable access to their property for the works to be undertaken. The Court's decision provides a clear framework for the maintenance of the tree to ensure the safety and well-being of the applicants and their property.

Orders

Orders of the court

The Court Orders that:

(1) The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree’s canopy overhanging the applicants’ land, and overhanging the respondents’ land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows:

(a) The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants’ land, the branch on the right-hand side which extends over the applicants’ back yard shall be removed.

(b) The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed.

(c) Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed.

(2) The works in Order 1 shall be completed within 60 days of the date of these orders.

(3) In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree’s canopy overhanging the applicants’ land and overhanging the respondents’ land within 1 m of the common boundary.

(4) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours.

(5) The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours’ notice from the respondents or the respondents’ agent by email, advising the date and approximate start time. Copies of the arborists’ qualifications and insurance Certificates of Currency shall be attached to each email.

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:	Johnson v Kaushik [2024] NSWLEC 1374
Hearing dates:	26 March 2024
Date of orders:	03 July 2024
Decision date:	03 July 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court Orders that: (1) The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree’s canopy overhanging the applicants’ land, and overhanging the respondents’ land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows: (a) The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants’ land, the branch on the right-hand side which extends over the applicants’ back yard shall be removed. (b) The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed. (c) Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed. (2) The works in Order 1 shall be completed within 60 days of the date of these orders. (3) In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree’s canopy overhanging the applicants’ land and overhanging the respondents’ land within 1 m of the common boundary. (4) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours. (5) The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours’ notice from the respondents or the respondents’ agent by email, advising the date and approximate start time. Copies of the arborists’ qualifications and insurance Certificates of Currency shall be attached to each email.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree with copious deadwood – apprehension of damage and injury – sticks and leaves falling onto dwelling roof and back yard
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12, Pt 2 State Environmental Planning Policy (Biodiversity and Conservation) 2021
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe…