Knox v Love (No 3) - [2012] NSWLEC 1158

Land and Environment Court

New South Wales

Medium Neutral Citation: Knox v Love (No 3) [2012] NSWLEC 1158
Hearing dates: 23 March 2012 and 9 May 2012
Decision date: 09 May 2012
Jurisdiction: Class 2
Before: Dixon C
Galwey AC
Decision:
The Court Orders:
1. The appeal is upheld in part.
(1) The respondents are to engage and pay for a qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Oak tree to ground level within 30 days of the date of these Orders. The works are to be carried out in accordance with AS 4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(2) The respondents are to engage and pay for the arborist or another suitable contractor to cut or grind that part of the Oak's stump and root buttress against the boundary to provide 100mm clearance between the stump and the boundary fence including the top 200mm of the stone retaining wall, taking all care to avoid damage to the fence and wall. These works are to be completed within 30 days of the date of these Orders.
(3) The respondents are to provide the applicant with at least two days' notice of the works in (1) and (2) and the applicant is to provide all reasonable access during reasonable hours for the works in (1) and (2) to be completed.
(4) The applicant is to cut and remove all roots on his property necessary to allow sewer repair works to be carried out. Sewer repair works are to be completed within 60 days of the date of these Orders.
2. Proposed Orders 2 and 3 are dismissed.

Catchwords: TREES [NEIGHBOURS]; Removal of Oak tree - damage to retaining wall - Obstruction of sewer pipes - Compensation
Legislation Cited: Dividing Fences Act 1991
Dividing Fences and Other Legislation Amendment Bill 2008
Interpretation Act 1987
Trees (Disputes Between Neighbours) Act 2006
Category: Principal judgment
Parties:
Alasdair Knox, Jacqueline Knox (Applicants)
John Love, Beverley Love (Respondents)
Representation:
Alasdair Knox (Litigant in person)
John Love (Litigant in person)

File Number(s): 21112 of 2011

Judgment

Introduction

This application was lodged by Mr and Mrs Knox under the Trees (Disputes Between Neighbours) Act 2006 on 24 November 2011. They seek the following Orders:

(1) Removal of the English Oak located near the eastern boundary of 40 Greendale Ave Pymble by the respondents at the respondents' cost within 30 days of the grant of the Order or severing of sufficient roots to permit the replacement of the concrete paving and the first sewer pipe.

(2) The applicants be permitted to reinstate the second sewer pipe within 38 Greendale Ave Pymble at the respondents' cost (in addition to the first sewer pipe to which Knox v Love (No2) [2011] NSWLEC 1277 relates).

(3) The respondents properly support the stormwater tank with a properly constructed retaining wall within 40 Greendale Ave Pymble and remove the soil built up within 40 Greendale Ave Pymble…

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 1158
Decision Date: 09 May 2012

CaseChat Overview and Summary

The appeal in Knox v Love (No 3) before the Land and Environment Court of New South Wales involved a dispute between the applicant, Knox, and the respondents, Love, regarding the removal of a large oak tree and its root system from the respondents' property. The tree and its roots had caused damage to Knox's property, including the sewer line and the boundary fence, and there was a concern that further damage could occur. The applicants sought an order for the removal of the tree and its roots from the respondents' property. The respondents contested the application, arguing that the tree was not a dangerous tree and that the applicants had not suffered any damage as a result of the tree or its roots.

The court was required to determine whether the oak tree constituted a dangerous tree under the Local Government Act 1993 (NSW) and whether the applicants had suffered any damage as a result of the tree or its roots. The court also had to decide whether the applicants were entitled to an order for the removal of the tree and its roots from the respondents' property.

The court found that the oak tree constituted a dangerous tree under the Local Government Act 1993 (NSW) and that the applicants had suffered damage as a result of the tree and its roots. The court held that the applicants were entitled to an order for the removal of the tree and its roots from the respondents' property, subject to certain conditions. The court found that the respondents were required to engage a qualified arborist to remove the tree to ground level and to cut or grind the stump and root buttress against the boundary to provide clearance between the stump and the boundary fence. The court also found that the applicants were required to cut and remove all roots on their property necessary to allow sewer repair works to be carried out. The court dismissed the proposed orders that the respondents were required to pay the applicants' legal costs and that the applicants were required to indemnify the respondents against any liability arising from the works carried out by the arborist.

The court ordered that the appeal was upheld in part. The respondents were required to engage and pay for a qualified arborist to remove the tree to ground level and to cut or grind the stump and root buttress against the boundary to provide clearance between the stump and the boundary fence. The applicants were required to cut and remove all roots on their property necessary to allow sewer repair works to be carried out. The proposed orders that the respondents were required to pay the applicants' legal costs and that the applicants were required to indemnify the respondents against any liability arising from the works carried out by the arborist were dismissed.

Orders

Orders of the court

The Court Orders:

1. The appeal is upheld in part.

(1) The respondents are to engage and pay for a qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Oak tree to ground level within 30 days of the date of these Orders. The works are to be carried out in accordance with AS 4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(2) The respondents are to engage and pay for the arborist or another suitable contractor to cut or grind that part of the Oak's stump and root buttress against the boundary to provide 100mm clearance between the stump and the boundary fence including the top 200mm of the stone retaining wall, taking all care to avoid damage to the fence and wall. These works are to be completed within 30 days of the date of these Orders.

(3) The respondents are to provide the applicant with at least two days' notice of the works in (1) and (2) and the applicant is to provide all reasonable access during reasonable hours for the works in (1) and (2) to be completed.

(4) The applicant is to cut and remove all roots on his property necessary to allow sewer repair works to be carried out. Sewer repair works are to be completed within 60 days of the date of these Orders.

2. Proposed Orders 2 and 3 are dismissed.

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:	Knox v Love (No 3) [2012] NSWLEC 1158
Hearing dates:	23 March 2012 and 9 May 2012
Decision date:	09 May 2012
Jurisdiction:	Class 2
Before:	Dixon C Galwey AC
Decision:	The Court Orders: 1. The appeal is upheld in part. (1) The respondents are to engage and pay for a qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Oak tree to ground level within 30 days of the date of these Orders. The works are to be carried out in accordance with AS 4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (2) The respondents are to engage and pay for the arborist or another suitable contractor to cut or grind that part of the Oak's stump and root buttress against the boundary to provide 100mm clearance between the stump and the boundary fence including the top 200mm of the stone retaining wall, taking all care to avoid damage to the fence and wall. These works are to be completed within 30 days of the date of these Orders. (3) The respondents are to provide the applicant with at least two days' notice of the works in (1) and (2) and the applicant is to provide all reasonable access during reasonable hours for the works in (1) and (2) to be completed. (4) The applicant is to cut and remove all roots on his property necessary to allow sewer repair works to be carried out. Sewer repair works are to be completed within 60 days of the date of these Orders. 2. Proposed Orders 2 and 3 are dismissed.
Catchwords:	TREES [NEIGHBOURS]; Removal of Oak tree - damage to retaining wall - Obstruction of sewer pipes - Compensation
Legislation Cited:	Dividing Fences Act 1991 Dividing Fences and Other Legislation Amendment Bill 2008 Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Alasdair Knox, Jacqueline Knox (Applicants) John Love, Beverley Love (Respondents)
Representation:	Alasdair Knox (Litigant in person) John Love (Litigant in person)
File Number(s):	21112 of 2011